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A 

PRACTICAL  TREATISE 

OF 

THE  LAW 

OF 

VENDORS  AND   PURCHASERS 

OF 

ESTATES. 

By  sir  EDWARD  SUGDEN. 


BONJE     FIDEI      VENDITOREM,    NEC      COMMODORUM    SPEM     AUGERE,    NEC 
JNCOMMODORUM    COGNITIONEM    OBSCURARE    OPORTET. 

Valerius  Maximus,  1.  vii.  c.  11. 


FROM  THE  NINTH  LONDON  EDITION. 
WITH    NOTES    AND    REFERENCES    TO    AMERICAN    DECISIONS. 


IN     TWO     VOLUMES. 

VOL.  I. 


BROOKFIELD,   MASS. 
PUBLISHED    BY    E.    &    L.    MERRIAM. 

1836. 


Entered  according  to  the  Act  of  Congress,  in  the  year  1836, 

BY  E.  &  L.  MERRIAM, 
in  the  Clerk's  Office  of  the  District  Court  of  Massachusetts. 


J».J^'^^■ 


,  ^.  ^  b 


£.    AND    L.    M£RRIAM,    PRINTERS. 


4 

4 


ADVERTISEMENT. 


THE  recent  Decisions  have  been  introduced  into  their 
proper  places ;  and  references  have  been  made  to  all 
the  Reports  of  the  modern  Cases,  as  few  have  on  their 
shelves  all  the  contemporaneous  Reporters.  The  lan- 
guage of  the  Law  has  been  altered  by  the  Real  Property 
Acts,  and  the  text  of  this  work  has  accordingly  through- 
out required  alteration.  No  aj)ology  is  necessary  for 
introducing  a  view  of  those  Acts  in  the  Chapter  upon 
Title,  as  it  is  of  deep  importance  that  their  contents 
should  be  readily  accessible.  To  prevent  the  too  fre- 
quent recurrence  of  new  Editions,  the  Writer  has  been 
induced  to  add  upon  this  occasion  considerably  to  the 
usual  number  of  copies  ;  and  as  that  will  deprive  him 
of  an  early  opportunity  of  again  correcting  the  Work, 
he  has  revised  it,  with  a  view  to  this  Edition,  with  all 
the  care  and  attention  which  his  opportunities  have 
permitted. 

Lincoln's  Inn, 
17 th  May,  1834. 


CONTENTS 

OF  VOLUME  I. 


[27ie  figures  refer  to  the  original  pages  as  numbered  at  the  bottom.'] 

Page 
Introduction  ........         1 


CHAP.  I. 

OF    SALES    BY    AUCTION    AND    PRIVATE    CONTRACT. 


I.  Of  the  Auction  Duty 
II.  Of  Puffing 

III.  Of  the  particulars  and  Conditions  of  Sale 

IV.  General  Observations 

V.  Duty  on  Appraisements     . 


13 
23 
30 
45 
54 


CHAP.  n. 

OF    SALES    UNDER   THE    AUTHORITY    OF    THE    COURTS    OF    EQUITY. 

Sect.    1.  Of  the  Proceedings  from  the  Advertisements  to 

the  Conveyance  ....        55 

Sect.  2.  Of  opening  the  Biddings  ;  and  of  rescinding  the 

Contract         .         .  .....     65 


CHAP.  HI. 

OF    PAROL    AGREEMENTS    AND    PAROL    EVIDENCE. 

Sect.   1.    Of  the  Interests  which  are  within  the  Statute       75 

Sect.  2.    Of  the  Form  and  Signature  of  the  Agreement       85 

I.  What  is  a  sufficient  Agreement   .         .      ib. 


CONTENTS. 


II.   AVhal  is  a  sufficient  Signature   by  the 

Party  or  his  Agent  . 
III.  Who  is  an  Agent  hiwfully  authorized 
Sect.  3.  Of  Parol  Agreements  not  witiiin  the  Statute 
I.   Sales  by  Auction  before  a  Master 

II.  Agreements  admitted  by  Answer 
III.  Part  Performance,  &.c. 

Sect.  4.  Of  the   Admissibility  of  Parol   Evidence   to  vary 
or  annul  written  Instruments    , 
I.  Where  there  is  not  any  Ambiguity 
II.  Where  there  is  an  Ambiguity 

III,  Where  a  Term  is  omitted  or  varied  by 

Mistake  or  Fraud     .  .  .  . 


Page 

99 
103 
108 

ih. 
110 
114 

13-2 

ih. 

151 

158 


CHAP.  IV. 

OF  THE  CONSEQUENCES  OF  THE  CONTRACT. 

Sect.  1.  Of  the  Rule  in  Equity,  that  the  Purchaser  is 
entitled  to  the  Estate  from  the  Time 
of  the  Contract         .  .  .  .171 

Sect.  2.  Of  Specific  Performance J  91 

I.  With  respect  to  the  Vendor         .         .  ih. 

II.  With  respect  to  the  Agreement  itself  201 

Sect.  3.  Of  the  Remedies  for  a  Breach  of  Contract            .  216 


CHAP.   V. 


OF    THE    CONSIDERATION. 

Sect.   J .  Of  unreasonable  and  inadequate  Considerations  257 

I.  Of  unreasonable  Considerations            .  ih. 

II.  Of  inadequate  Considerations      .          .  259 

III.  or  inadequacy  where  the  Conveyance 

is  executed      .         .  ,         .         .261 

IV.  Of    inadequacy   where  the   Interest   is 

reversionary     .....     263 


CO.\TKNT3.  VII 

Page 

Sf.ct.   '2.  Of  the   failure   of  the   Consideration  before   the 

Conveyance    .....     277 
I.  Of  Loss  by  Fire,  &.c.  .         .         .       ib. 

II.  Of  the  Death  of  the  Person,  for  an 
Annuity  upon  whose  Life  the  Estate 
nas  sold  .....     280 


CHAP.  VI. 

or  THE  PARTIAL  EXECUTION  OF  A  CONTRACT  WHERE  A  VENDOR 
HAS  NOT  THE  INTEREST  WHICH  HE  PRETENDED  TO  SELL; 
AND  OF  DEFECTS  IN  THE  QUANTITY  AND  QUALITY  OF  THE 
ESTATE. 

Sect.   1.  Where  the  Vendor  has  not  the  Interest  which  he 

sold 287 

I.  In  what  Cases  the  Vendor  may  enforce 

a  part  Performance           .       />..         •       *&• 
II.  In  what  Cases  the  Purchaser  may  en- 
force it 30^ 

Sect.  2.  Of  Defects  in  the  Quality  of  the  Estate  .     307 

Sect.  3.  Of  Defects  in  the  Quantity  of  the  Estate  .     318 


CKAP.  VII. 

OF    THE    TITLE    WHICH    A    PURCHASER    MAY    REQUIRE. 

I.  Of  the  Root  of  the  Title       .  •         •         •     ^29 

II.  Of  the  Production  of  the  Lessor's  Title  •     331 

III.  Of  equitable  and  doubtful  Titles ;    of   Fines 

to  bar  Dower  ;  and  of  equitable  Jointures    .     339 

IV.  Of  equitable  Recoveries  where  the  Tenant  to 

the  Praecipe  has  the  legal  Estate  .         •     375 

V.  Of  a  Title  under  the  Statutes  of  Limitations        386 


VUl 


CONTENTS. 


CHAP.  VIII. 

OF    THE    TIME    ALLOWED    TO    COMPLETE    THE    CONTRACT. 

Page 

Sect.  1.  Of  Delays  occasioned  by  the  Neglect  of  either 

Party 419 

Sect.  2.  Of  Delays  occasioned  by  the  State  of  the  Title       424 


CHAP.  IX. 

OF    THE   abstract  AND    conve:^ance;    the    assignments    of 
terms  ;  attested    copies    and    covenants    for  TITLE  to 

which  a  purchaser  is  ENTITLED  ;  OF  SEARCHING  FOR 
incumbrances;  and  of  relief  in  respect  of  INCUMBRAN- 
CES. 

Sect.  1.  Of  the  Abstract  and  Conveyance       .         .         .     447 
Sect.  2.  Oi  Assignments  of  Terms         ....     453 

I.  What   Terms  may  be  used   upon  an 

Ejectment       .         .         .         .         .       ib. 

II.  Of  the  Merger  of  Terms  .         .         .460 

III.  At  whose  Expense  to  be  assigned,  and 

where  Assignments  may  be  dispens- 
ed with 465 

IV.  Of  presuming  a  Surrender  of  Terms 

which  have  been  assigned  to  attend 
the  Inheritance        ....     470 
V.  Of  the  Protection  afforded  by  a  Term 

assigned  to  attend         .  .  .510 

VI.  W^here  Terms   attend   the  Inheritance 

by  Implication  .  .  .  .521 

VII.  Of  the  nature  of  a  Term  assigned  to 

attend 525 

Sect.  3.  Of  attested  Copies    ......     529 

Sbct.  4.  Of  Covenants  for  Title     .....     533 

Sect.  5.  Of  searching  for  Incumbrances  ....     539 

I.  For  Judgments  .         .         .         ,       ib. 


CONTENTS.  IX 

Page 

II.  For  registered  Instruments  and  Annu- 
ities         549 

Sect.  6.  Of  relief  from  Incumbrances      ....     553 
I.  Where    the   Purchase-money  has   not 

.  been  paid         .....       i6. 
II.  Where  it  has  been  paid       .  .  .     554 

And  therein  of  Defects   in  the  Title 
to  the  Estate. 

VOLUME   II. 
CHAP.  X. 

OF    INTEREST    AND    COSTS. 

Sect.   1.  Of  Interest       .......  1 

I.  In  what  Cases  payable          .          .          .  ib. 

II.  At  what  Rate 20 

Sect.  2.  Of  Costs          .......  23 


CHAP.  XL 

OF    THE    OBLIGATION    OF     A    PURCHASER     TO    SEE    TO    THE    APPLICA- 
TION   OF    THE    PURCHASE-MONEY. 

Sect.   1.  Of  this  Liability  with  Reference  to  real  Estate  32 

Sect.  2.  Of  this  Liability  with   Reference    to  Leasehold 

Estates 5^ 

CHAP.  XII. 

OF    THE    vendor's    LIEN    ON     THE     ESTATE      SOLD,    FOR     THE     PUR- 
CHASE-MONEY,   IF    NOT     PAID. 

I.  In  what  Cases  raised  ...       57 

II.   Whether  it  extends  to  third  Persons  67 

III.  Against  whom  it  will  be  enforced         .       73 

VOL.    I.  B 


jj  CONTENTS. 

CHAP.  XIII. 

OF    THE    CONSTRUCTION    OF    COVENANTS    FOR    TITLE. 

Page 

Sect.   I .  Where  they  run  with  the  Land  ...       77 

Sect.  2.  Of  their  general  Construction    ....       81 
I.  To  what  and  against  whose  Acts  gene- 
ral   and    limited    Covenants    extend       8!2 
II.  In  what  Cases  restrictive  Words  extend 

to  all  the  Covenants  in  the  Deed        .       91 
III.  To  what  Remedy  the  Purchaser  is  en- 
titled in  case  of  a  Breach  ,  .     lO-J 


CHAP.  XIV. 

OF    THE    PERS,ONS    INCAPABLE     OF    PURCHASING. 

Sect.  1.  Of  Persons  incapable  of  purchasing  by  the  gene- 
ral Rules  of  Law     .         .         .         .105 

I.  An  absolute  Incapacity        .         .         .  ib. 
II.    An    Incapacity  to  hold,  although    an 

Ability  to  purchase           .         .         .  lOG 
III.  An  Incapacity  to  purchase,  except  sub 

modo      .         .         .         .         .         .107 

Sect.  2.  Of  Purchases  by  Trustees,  Agents,  &c.      .         .  109 

I.  Where  avoided            .          .          .          .  i6. 

II.  How  they  may  be  rendered  valid          .  119 

1 .  W^here  the  Trust  is  for  Creditors      .  ib. 

2.  Where  it  is  for  Persons  sui  juris     .  120 

3.  Where  it  is  for  Persons  not  sui  juris  121 
III.  Of  the  Remedy  against   the   Trustee, 

&-C 122 


CHAP.  XV. 

OF    JOINT      PURCHASES  ;      PURCHASES     IN      THE    NAMr:S     OF    THIRD 
PERSONS  ;     AND     PURCHASES      WITH      TRUST-MONEY  ;       AND     OF 


CONTENTS.  XI 

Page 
THE       PERFORMANCE      OF     A      COVENANT      TO        PURCHASE      AND 

SETTLE    AN    ESTATE. 

Sect.   1.  Of  Joint  Purchasers            .....  127 

Sect.  2.  Of  Purchases  in  the  Names  of  Third  Persons       .  134 

I.  In  the  Names  of  Strangers           .         .  ih. 
II.  In  the  Name  of  a  Child,  Grandchild,  or 

Wife 140 

Sect.  3.  Of  Purchases  with  Trust-Money         .         .         .  148 
Sect.  4.  Of  the  Performance  of  a  Covenant  to  purchase 

and  settle  an  Estate  .         .  .150 


CHAP.  XVI. 

OF  THE  PKOTLCTION  AND   RELIEF  AFFORDED   TO   rURCHASERS 
BY  STATUTES,  AND  BY  THE  RULES  OF  EQUITY. 

Sect.   1 .  Of  Fraudulent  and  Voluntary  Settlements  ;  and 
Settlements  with  Powers  of  Revoca- 
tion        ......     156 

I.  Of  Frandulent  Settlements  .         .       ih. 

II.  Of  Voluntary  Settlements  .  .         .159 

III.  Of  their  becoming  vahd  by  matter  ex 

post  facto       .         .         .         .         .169 

IV.  Of  Settlements  with  Powers  of  Revoca- 

tion      179 

Sect.  2.  Of  Protection  from  Charitable  Uses    .  .  .182 

Sect.  3.  Of  Protection  from  Acts  of  Bankruptcy       .         .     183 

I.  Under  the  old  Statutes         .         .         .      ib. 

II.  Under  the  Act  of  46  Geo.  3        .         .185 

III.  Under  the  Act  of  the  6th  of  the  late 

King 189 

Sect.  4.  Of  Protection  from  Judgments  and  Recognizances     192 
I.  In  the  Case  of  Freehold  Estates           .         .      ib. 
II.  In  the  Case  of  Leasehold  Estates        .         .198 
III.  Of  Recognizances     .....     203 
Sect.  5.  Of  Protection  from  Unregistered  Deeds,  *fcc.      .     204 
1.  What  Memorial  is  required   by  the  register- 
ing Acts 206 


XU  CONTENTS. 

Page 

II.  What  Deeds  ought  to  be  registered  .     211 

III.  Of  the  Exceptions  in  the  Acts  .  .  ,  217 

IV.  Of  the  equitable  Doctrine  on   the  Acts   in 

regard  to  Notice  .         .         .         .219 

V.  Observations  on  a  General  Register     .  .     224 

Sect.  6.  Of  Protection  from  Acts  of  Papistry  .  .241 

Sect.  7.  Of  Protection  from  Defects  in  Recoveries  .     245 

Sect.  8.  Of  Protection  from  Defects  in   Sales   for  Land 

Tax 249 

Sect.  9.  Of  Protection  from  Crown  Debts       .         .         .     256 

Sect.   10.  Of  Equitable  Relief  and  Protection  .         .     258 

I.  Where  the  Purchaser  has  not  Notice  .       ib. 

II.  The  Eftect  of  Notice  .         .         .         .268 


CHAP.  XVII. 


OF    NOTICE. 


I.  Of  Actual  Notice 276 

II.  Of  Constructive  Notice      .         .         .         .     278 
III.  Of  Evidence  of  Notice      ....     298 


CHAP.  xvm. 

OF    PLEADING    A    PURCHASE  .  .  .  .       303 


CONTENTS. 


Xlll 


APPENDIX  OF  MS.  CASES,  &c. 

No.   1.   ^ 

No.  2.    >  Notices  under  the  Auction  Duty  Acts 

No.  3.    ) 

No.  4.  Conditions  of  Sale  .... 

No.  5.  Agreements  to  be  executed  at  a  Sale  by  Auction 

No.  6.  Agreement  for  Sale  by  Private  Contract 

No.  7.  Bratt  v.  Ellis 

No.  8.  Jones  v.  Dyke 

No.  9.  Wyatt  v.  Allen   . 

No.  10.  Morshead  v.  Frederick 

No.  11.  A  Bill  for  extending  the  Provisions  of  the  Statute 

of  Frauds 
No.   12.  Ex  parte  Tomkins 
No.   13.  Observations  on  the  Annuity  Act,  and  on  raising 

the  legal  Rate  of  Interest 
No.  14.  Coussmaker  v.  Sewell 
No.   15.  Clay  v.  Sharpe 
No.  16.  Belch  v.  Harvey  -. 
No.  17.  The  King  v.  Smith 
No.  18.  Attorney-General  v.  Lockley 
No.  19.  Bret  v.  Sawbridge 
No.  20.  Forshall  v.  Coles 
No.  21.  Burton  and  others  v.  Todd,  > 
Todd  V.  Gee  and  others,  > 
No.  22.  Duke  of  Bedford  v.  British  Museum 
No.  23.  Rea  v.  Williams 
No.  24.  Lechmere  v.  Lechmere 
No.  25.  Fairfield  v.  Birch 
No.  26.  Sloane  v.  Cadogan 
No.  27.  Bury  v.  Bury 


Page 

311 

312 
315 
316 
317 
319 
320 
ib. 

322 
326 

ib. 
336 
337 
339 
341 
349 
352 
358 

359 

361 
366 
367 
369 
370 
381 


INDEX 


401 


INDEX  TO  CASES, 

CITED  OR  INTRODUCED. 


JVote,  "v."  follows  the  name  of  the  plaintiff;  "and,"  the  name  of  the 
defendant. 

The  Cases  printed  in  italics  are  either  cited  or  stated  from  MSS.  or 
have  been  examined  with  the  Register's  book,  or  searched  for  with- 
out success. 


^The  figures  refer  to  the  original  pages  as  numbered  at  the  bottom.^ 


A. 


Abbot  v.  Gibbs 

and  Jebb 

and  Rex 


Abdy  V.  Loveday 
Abel  and  Doe 
Abingdon  (Lord)  and  C 
Abney  and  Merry 
Abraham  v.  George 
Abrahams  and  Fuller 
Abrey  and  Wood 
Aburrow  and  Bennett 
Acherley  v.  Acherley 
Ackernrian  and  Trand 
Acland  V.  Gaisford  51 
Ackland  and  Malpas 
Acton  and  Cage 

V.  Pierce 

Adams  and  Daniel 

and  Davids 


Adams  and  Dickenson 
Adams  V.  Fairbain 

and  Greenaway 

and  Hill 

V.  Taunton 

V.  Weare 

Adamson  v.  Evitt 

and  Stevens 

Adcock  and  Mertens 


Page 

ii.  32 
ii  34 
14,  15 
ii.  261 
255 
hild  ii.  8.  20 
ii.  279 
ii.  188 
30 
266.  273 
ii.  375 
ii.  135 
ii.  299 
;  ii.  10.  20 
ii.  293 
461,  462 
213 
104.  197. 
200.  206 
122,  n. 
122 
151 
231 
517 
ii.  51 
257 
8 
310 
40 


Page 

Adderly  v.  Dixon  202 

Addison  v.  Dawson  ii.  108 

Adkinson  and  Hall  ii.  259 

Advocate  General  and  Walker,    20 


Aflalo  and  Goom 
Agar  v.  Macklew 
Ailsbie  and  Holmes 
Alam  v.  Jourdon 
Alcock  and  Goleborn 

and  Jeudvvine 

and  Knollys 


Aldrich  v.  Cooper 
Aldridge  and  Floyd 

and  Mesnard 

and  Nelson 


Alexander  and  Crockford 


102 

276 

632 

ii.   300 

ii.  259 

218 

184,  185 

ii.  70 

175 

33 

45 

173. 

217 

Allan  V.  Bovver  127 

Allen  V.  Anthony  ii.  291 

V.  Bennet,    85,  86.  93.  100. 

105 

and  Bull  229 

(Lord)  and  Cane,  ii.  1 13.  121 

and  Garbrand  ii.  107 

and  Wilson  ii.  26 

Allen  and  JVyalt      46.  104;  App. 

No.  9 
Alley  V.  Deschamps         424,  425. 

428 
AUeyn  v.  Alleyn       174.  179,  180 


XVI 


INDEX    TO    CASES. 


Page 

Allington  and  Boteler  194 

(Lord)  and  Napper       ii.  103 

Alliston  and    Stewart,   42,     295,  n 

296 
Allpass  V.  Watkins  243 

AIlsop  and  Doe  ii.  223 

Alsop  V.  Patten  120,  121 

Alston  and  Taylor  ii.  139 

Alt  and  Bramley  25 

Altham  (Lord)  v.  the  Earl  of 

Anglesea  ii.  138 

Altham's  case  152 

Ambrose  v.  Ambrose,  49.  57  •, 

ii.  135,  136 
Amcourt  v.  Elever  245 

Amy's  case  10 

Ancaster  (Duke  of)  and  Earl 

ofTyrconnel  36 

Anderson  and  Lord  Ormond        90 

and  Peters  566 

Anderton  and  Robinson  553,  n. 

Andover  (Lady)  and  Sir  James 


Lowther 
Andrew  v.  Andrew 
V.  Wrigley,     ii. 

Andrews  and  Back 
Andrew's  case 
Andrews  and  Charles 

and  Doe 

V.   Emerson 

V.  Emmott 


and  Sir  Darcy  Lever 

and  Maddison 


438  ;   ii.  1 

219 

52,   63.   55, 

56.  275 

ii.  147 

325,  326 

257.  362  ; 

ii.  57 

ii.  299 

67 

ii. 

ii. 

ii. 


Pag 


375 
135 
139 


Anglesea  (^Earl  of)  and  Lord 

Altham  ii.  138 

(Earl  of )  V.   Annesley      148 

Annesley  and  Earl  of  Anglesea  ib. 

V.  Ashurst  64 

V.  Muggridge,  48,  49  ;   ii.  28 

and  Errington  202 

(Lord)  and  Hovenden,    394, 

395.  397 

(Lord)  and  Saunders,      254. 

397.  298  n. 
Anonymous  (2  Cha,  Ca.  19)     562 


(2  Cha.  Ca.  53) 

—  (2  Cha.  Ca.  136) 

—  (2  Cha.  Ca.  161) 

—  (2  Cha.  Ca.  208) 


198 

ii.  286 

ii.  304,  n 

3071 
ii.  259  I 


Anonymous  (1  Freem.  486)      119 

(1  Freem.  450) 

(2  Freem.  106) 


(2  Freem.  128) 

(2  Freem.  137) 

(2  Freem.  155) 

(1  Vern.  318) 

(1  Ventr.  361) 


n.  82 

320.  553, 

554.  660 

119.  131  ; 

ii.  141 

ii.   290 

191 

ii.  281 

77,  n.  81 

(2  Ventr.  46)  ii.  82 

(2  Ventr.  36  1,  No.  2)     542  ; 

ii.  306 
(1  Ventr.  361,  No.  3)  ii.  135 

(Carth.  15)  ii.  127 

(Mose.  96)  ii.  32.  38 

(Sel.  Cha.  Ca.  57)      ii.  149 

(Skin.  159)  168 

(Skin.  404)  ii.  298 

(5  Vin.  522,  pi.  38, 

4  Geo.)  147 

(5  Vin.  Abr.  521.  pi,  32) 

ii.   133 

(5  Vin  Abr.  522,  pi.  38.)  126 

(5  Vin.  Abr.  523,  pi.  40)    ib. 

(1  Show.  90)  389,  n. 

(1  Salk.  153)  ii.  34,  n. 

(11  Mod.  5)  627 

(1  Lord  Raym.  182)  81 

(1  Str.  95)  152 

(3  Atk.  270)  ii.  301 

[Lofft.  460)  ii.  82 

(1  Bro.  C.  C.  158,  6  Ves. 

jun.  24,  cited)  261 

(Dougl.  384,  cited)      158,  n. 

(2  Dick.  497,  n.)  250 

(2  Ves.  663)  479 

(1  Ves.  jun.  453)  66.  69 

(2  Ves.  jun.  286)  69 

(2  Ves.  jun.  335)  60 

[2  Ves.  jun.  487)  66 

(5  Ves.  jun.  148)  ib. 

(6  Ves.  jun.  24,  cited)      261 

■ (6  Ves.  jun.  470,  cited)    127 

(6  Ves.  jun.  513)  69 

(1  Trea.  Eq.  211,  n.  r.)   304 

(3  East,  340,  cited)  20 

(6  East,  611)  77,  n. 

Anonymous  (Contract,  MS.),  352 
Anonymous  (3  Mad.  494)  67 
(3  Madd.  495)                  224 

(E.  T.  1790)  304 


INDEX    TO    CASES. 


XVll 


Page 

Ahoiujmous  (Practicf,  MS.)  60,  n. 
Anonymous  (Ch.  25  July  1808;  38 

(1  Camp.  Ca.  491,  n.\  ii.  188 

Anonymovs  (Ii.  I.  Hall,  16  July 

1816,  MS.)  62.  227 

Anseil  and  Meres 
Ansley  and  Farebiother 
Anson  v.  Towgood 
Jinson  {Lord)  and    Winter 


Anspach  (Margravine  of)  v. 

Noel 
Anthony  and  Allen 
Appleton  V.  Binks 
Appowell  V.   Monnoux 
Archbold  and  Magrane 
Archer  and  Barraud 

and  Collins 

and  Doe 

Ardcock  and  Sharp 
Ardesoife  v.  Bennet 
Ardglasse  (Earl  of)  v. 

champ 
Ark  Wright  and  Crosby 
Armiger  v.  Clarke 
Armitage  and  Mason 


133 

22 

62 

ii.  57, 

58,  59 


and  Pillinff 


Armstrong  and  Maguire 
Arnald  v.  Arnald 
Arnold  and  Bechinall 

and  Lee 

and  Morrison 


224 

ii.  291 

53 

ii.  77,  n. 

205.  215 

9.  36 

ii.  310 

ii.  272 

340 

174,  175 

Mu.s- 

264 
ii.  327 
216 
105.  109. 
.  206 
ii.  300 
ii.  272 
183 
ii.  260 
ii.  77,  n. 
370 
ii.  301 
248 
445 
ii.  62,  n. 


Arnot  V.  Biscoe 
Arthur  and  Macnamara 
Jiriin^stall  and  Tyrer 
Arundel  v.  Bidlake 

and  Day  ii.  304,  n.  306 

Ashdownand  Stileman  ii.  145.  1P6 
Ashley  v.  Baillie  ii.  278.  280 

and  Harvey  ii.  295 

Ashlin  and  Greaves  40.  133 

Ashton  and  Nash  ii.  85 

Ashurst  and  Annesley  64 

Askew  and  Osbaldeston  353  ;  ii. 

28 
Aspinall  V.  Kempson  50  ' 
Astley  and  Dixon  226,  227 
Aston  v.  Aston 
and  Culpepper 


Page 

Atcherley  v.  Vernon,  171.  174, 175 
Atchison  v.  Dickson  278,  n. 

Atkins  and  Hope  133 

v.  Rowe  ii.  133 

Atkinson  and  Bowles  317 

Attenborough  and  Williams, 

62.  67 
Attersoll  and  Blake  ii.  330 

Attorney-General  v.  Back- 
house ii.  125,  n.  292 

V.  Ba^g  ii.  143 

v.  Cast  Plate  Glass  Com- 
pany 154 
—J —  and  Christie                   21,  22 

V.  Day  65.  109.  189 

V.  Lord  Dudley  ii.  115 

V.  Forster  157 

v.  Gower,  301  ;    ii.  278.  306 

v.  Griffith  ii.  125,  n. 

V.  Parker  157 

V.  Sands,  463.  513.515.  521. 

525.  528 
Attorney- General  v.  Scott,  517,  n. 

v.  Taylor  20 

and  Thruxton  625.  527,  528 

V.  Vigor  182 

Atwood  and  Moth  265 

Attwood  and  Small      4.  205.  258. 
261.565;  ii.  126 
Aubrey  v.  Fisher  38 

Auriol  and  Mills  ii.  104 

Austen  and  Davies        ii.  264,  265 

v.  Halsey  ii.  70 

Austin  and  Crowder  28 

Austwick  and  Maddeford  261 

Aveling  v.  Knipe  ii.  127 

Awbrey  v.  Keen  654 

Ayers  and  Fain  ii.  103 

Ayerst  and  Boys  89 

Aylesford's  (Earl  of)  case         116 
Ayliffe  v.  Murray  ii.  120 


B. 


Back  v.  Andrews 

v.  Kett 

and  Turner 


ii.  147 

182 

ii.  261 


—  V.  Curzon 

VOL.    I. 


ii.  304 

ii.  32.  48. 

281 

ii.   307 

C 


Backhouse  and  Attorney- 
General  ii.  12.5,  n.  292 

and  Bedford,  ii.  220 

Badcock,  e.r  parte  ii.  109 

,  Baddall  and  Gibbons,  ii.  61,  62.  74 


INDEX    TO    CASES. 


Pa«e 

Ba(Jen  v.  Earl  of  Pembroke     172. 

527 
Bage,  ex  parte  ii.  109.  119 

Bagenal  and  Whaley  96.  115 

Bagg  and  Attorney-General,  ii   143 
Baghlehole  v.  Walters  313 

Bagott  and  Blakeney,  264  ;  ii.  272 
Baikfe  v.  Chandless  652 

Bailey  v.  Ekins  ii.  38 

Bailey  and  Hays      289.  345.  455. 
506  ;   ii.  25 

V.  Tyrer  445 

Baillie  and  Ashley,        ii.  278.  280 

V.  Chaigneau  66 

Bailiffs,  &c.  of  Tewkesbury  v. 

Bricknell  157 

Baily  and  Lamas  ii.  132,  133 

and  Stent  277,  278 

and  Stevens  191 

Bainbridge  and  Bruce  ii.  28 

Bainton  and  Lambert  ii.  113 

Baker  v.  Bent  273 

V.  Child  197 

JBaA-erand  Cuthberi,  291  ;  ii.  42.  45 

V.  Bibbiti  358 

V.  Morgan  58 

V.  Paine  168 

Baker  and  Smith  ii.  135 

and  Squire  258 

and  Taylor  (1  Dan.  71)  ii.  290 

and  Taylor  (5  Price  306) 

ii.  292 
293 
282 
45.  342 
217 
i.  32.  34 
274 
116 
ii.  36 
ii.  149 
ii.  167 
223 
109 
ii.  120 
394 
ii.  78 
222 


Baldey  v.  Parker 
Baldwin  v.  Boulter 

and  Cane 

-  and  Echliff 

and  Lloyd 

V.  Rochfort 

Balfe  and  Kine 
Balfour  V.  Welland 
Balgney  v.  Hamilton 
Ball  V.  Bumford 

and  Gordon 

and  Symonds 

Ballard  and  Crowe 

and  Hercy 

Bally  V.  Wells 
Balmanno  v.   Lumley 
Banbury  (Earl  of)  and  Bisco, 

ii.  293 
Banes  and  Croyston  110 

Banks  v.  Sutton  517 


Barber  and  Davy 

V.  Gamson 

and  Lea 

V.  Morris 


Page 

ii.  2.  8,  9 

ii.  331 

84 

255 

Barchard  and  Low  262 

Barclay  v.  Raine  532 

Barker  and  Bramton  ii.  306 

V.  Duke  of  Devon  ii.  33 

V.  Hill  172 

V.  Holford  60 

V.  Harper  62 

and  Preston  66 

Barkley  and  Jones  246 

Barksdale  v.  Morgan  325 

Barnard  (Lord)  and  Vane 

553  ;  ii.  279 
Barnardiston  (Sir  J.)  v.  Lin- 
good  264 
Barnes  v.  Crowe  181 

and  Freeman  454 

and  Walker  262 

Barnfather  v.  Jordan  ii.  107 

Barns  v.  Canning  ii.  281 

Barnston  and  Stackhousc  395 

Barnwell  v.  Harris   288,  289.  329. 
343.  350.  363 
Barraud  v.  Archer  9.  36 

Barrett  v.  Blake  58 

V.  Gomeserra  116.  259 

and  Morris  ii.  129 

Harrington  v.  Home  198 

Barrow  and  Hilton  230 

Barry  v.  Lord  Barry  more  104 

and  Conran  68,  n. 

and  Phillimore,  101,  102.  105 


Barrymore  (Lord)  and  Barry  104 
Barstow  v.  Kilvington  164 
Bartch  and  Kilchin  157 
Bartiett  v.  Downes  502 
V.  Pickersgill,  114  ;   ii.    136. 

139 

V.  Tuchin  432 

and  White  49 

Barton  and  Buckland  ii.  375 

V.  Fitzgerald  ii.  93.  97 

and  Richards,  238.  447.  451. 

541 
Bartram  and  Hudson  444 

Barvvick  and  Say  203 

Bascoi  V.  Serra  ii.  296 

Baskerville  and  Dickinson,  122,  n. 
Basket  v.  Pierce  454 


INDEX    TO    CASES. 


Pa«c 

Basset  V.  Nosworthy,  ii.  259.  306 

and  Upton  ii.  157 

Bateman  and  Cox  ii.  149 

V.  Phillips  85.  241 

and  Stephens  2G2 

Bateman  v.  Shore  ii.  130,  n. 

Bath  (Earl  of)  v.  Sherwin        214 
Battaly  and  Kdlin  ii.  266 

Battersbee  v.  Farrington       ii.    166 
Baugh  V.  Price        264,  265,  266  ; 

ii.  266 
ii.  14 
368 
338 
247 
329,  n. 
ii.  144 
ii.  188 
ii.  70 
157 
ii.  376 
265 
ii.  53 
348 
249 
ii.  355,  n. 
171.  174. 
177 
ii.  223 
101,  n. 


Bawden  and  Right 
Baxter  v.  Conolly 

and  Earl 

V.  Lewis 

Baylis  v.  Manning 

V.  Newton 

Bayly  v.  Schofield 
Bayne  and  Trimmer 
Baynham  v.  Guy's  Hospital 
Beable  v.  Dood 
Beake  and  Wiseman 
Beane  and  Ithell 
Beard  and  Chandler 

and  Right 

Beard  and  JVesicoit 
Beardsham  and  Davie 


BeatnifFv.  Smith 

Beatyv.  Beaty 

Beauclerk  (Lord)  and  Cant 

ii.  301 
165 
37 
ii.  157 
239.  288, 


Beaumont  v.  Bramley 

V.  Dukes 

and  Needham 


Beaurain  and  Turner 

Beazley  and  Welford 

Bechinall  v.  Arnold 
Beckett  and  Chater 

V.  Cordley 

V.  Kendall 

Beckford  v.  Beckford 
V.  Wade 


289,  n. 
95.  101  ; 

ii.  296 

ii.  260 
84 

ii.  296 
231.  265 

ii.  140 
388.  395 

ii.  220 


Bedford  v.  Backhouse 
Bedford  {Duke  of)  v.  Trustees 
of  the  British  JMuseum,      ii.  81  ; 
App.  No.  22 

(Earl  of)  and  Clare,    ii.  263 

(Duke  of)  and  Charle- 

wood  77,  n.  94.  104 


Pago 

Bedwell  and  Townley,  187  ;  ii.  01 
Beech  and  Taylor  114 

Beechey  and  Pennington       ii.  307 
Beete  v.  Bidgood  ii.  20 

Beevor  v.  Simpson  355 

Belch  V.  Harvey,  395;  App.  No.  16 
Bell  V.  Cundall 

and  Hutchinson 

V.  Howard 

V.  Phyn 

and  Scott 


11.  269 

5 

148.  428 

ii.   130,  n. 

ii.  167 

Bellaers  and  Wilicox  340 

Bellanuj  v.  Liversidge  370 

Bellasis  (Lady)  v.  Compton,  ii.  138 
Bellew  V.  Russell  ii.  112 

Bellringer  and  Rex  157 

Belworth  v.  Hapell  287 

Bengough  v.  Edridge        ii.  357,  n. 
Bennet  v.  Aburrow  830 

and  Allen,   85,  86.    93.  100. 

105 
Bennet  and  Ardesoife,  or  Wil- 
son 174,  175 
Bennet  College  v-  Carey,  61,  208  ; 

ii.  24 

V.  Mayhew  ii.  149 

V.  Musgrove  ii.  172 

exparte,'n.  109,  110.  113.  124 

31.33. 

242  ;  ii.  18 

58 

187 

ii.  101 

ii.  306 

ii.  293 

185 

35 

264 

135 

265 

273 

ii.  34 

229 

307 

264 

289.  436 

264 


Bennett  and  Bradshaw 


•  V.  Harnell 

and  Lawes 

and  Hughes 

and  Kelsall 

and  Moore 

V.  Lord  Tankerville 

V.  Womack 

Bensley  v.  Burdon 
Benson  and  Doe 

and  Turton 

Bent  and  Baker 
Benyon  v.  Collins 
Berkley  v.  Dauh 

and  Weston 

Bernal  v.  Donegal 

and  Wood 

Berney  v.  Pitt 
Berry  v.  Young,  38.  47.  419.  426. 
629.  531 
Besant  v.  Richards  136 

Best  V.  Stamford  522 


11. 


11. 


XX 


INDEX    TO    CASE3. 


Fuse  1 


Betesworth  (Dr  )  v.  Dean  and 

Chapter  of  St.  Paul's         212 
Bethill  and  Floyd  325,  326 

Bethune  v.  Farebiother  234 


Blackston  and  Lavender, 


Bettel  and  Webb 
Bevant  v.  Pope 
Beversham  and  Tyler 
Bevill's  case 
Bevis  and  Whitchurch 


247! 

359  ; 

324 

393 
98.  112, 
113,  114,  115  I 
Bewley  and  Noel  350 

Bexvvell  V.  Christie  23 

Bickerstaff  and  Hayes  ii.  83 

Bickerton  v.  Burrell  234 

Bicknell  and  Evans,  468.  489.  520  ; 
ii.  263.  300 
Biddulphv.  St.  John,  ii.  222.  297. 

301 
Bidgood  and  Beete  ii.  20 

Bidlake  and  Arundel  ii.  62,  n. 

Biggs  and  Pope  252 

Billing  and  Farrer  342 

Bill  and  Humble  ii.  33.  55 

Bingham  v.  Bingham  254 

Binion  (Sir  G.)  v.  Stone,      ii.  143 
Binks  and  Appleton  53 

Binks  V.  Lord  Rokebij,  296  ;  ii.  23. 

32 
Binstead  v.  Coleman  116.  133 

Birch  V.  Bletchley  99 

V.  Blagrave  ii.  144 

Birch  and  Fairfield,  ii.  165  ;    App. 
No.  25 


Birch  and  Fox 

V.  Haynes 

and  Watson 

V.  Wright 


a 


Birch  and  flood 

Bird  V.  Boulter 

Birkhead  and  Wortley, 

Birt  and  Meder 

Bisco  V.  Earl  of  Banbury, 

V.  Bret, 

and  Arnot 

V.  Perkins 

V.  Wilks 

Bistolli  and  Phillips 
Blacket  v.  Langlands 
Blackburn  v.  Gregson,    ii.  62.  66. 

74 

V.  Scholes  47 

V.  Stace  226 


227 

223 

68 

252 

131 

107 

ii.  284 

ii.  307 

li.  293 

223 

ii.  301 

ii.  269 

ii.  25 

43 

ii.  .303 


Page 

ii.  167. 

179 

Blackwell  and  Boyer  67.  292,  293 

Blackwood  and  Macartney,     ii.  19 

Blades  v.  Blades  ii.  222 

and  Winter  ii.  2 

Blagden  v    Bradbear,     87.  90.  93, 

94.  105.  109.  113 

Blagrave  and  Birch  ii.  144 

Blake  v.  Attersoll  ii.  330 

and  Barrett  68 

v.  Sir  Edward  Hungerford 

ii.  259 

and  D'Arcy  517,  n. 

V.  Foster  397 

and  Earl  of  Macclesfield    70 

and  Reynolds  63 

Blake's  case  397 

Blakeney  v.  Bagott,  264  ;     ii.  272 
Blakeston  v.  Martyn 
Blakey  v.  Porter 


548 
241 
154 
423 
131 
157 
146 
ii.  113 
99 
344 


Bland  and  Doe 
Blandford  and  Carpenter 
Blandist  and  Miller  118. 

Blankeley  v.  Winslanley 
Blemerhasset  v.  Pierson 
Blennerhasset  v.  Day 
Bletchley  and  Birce 
Bliss  v.  Collins 

v.  Vancouver,  10.  229.  295  ; 

ii.  24 
Blogg  and  Holmes  ii.  107 

Bloodworth  and  Radford,       ii.  185 
Blore  v.  Sutton  91.  101.  231 

Blosse  V.  Clanmorris  340 

Blount  V.  Blount  ii.  4.  8,  9.  20 

Blundell  v.  Brettargh 
Blyth  V.  Elniherst 


Blylhmore  and  Barker 
Boakes  and  Kingdoine 
Boatwright  and  Cubbidge 
Boardman  v.  Mostyn 
Bodinaton  and  W'ilker 


275 
223 

ii.  309 

ii.  300 

ii.  53 

128 
479  ;  ii. 
286 
Bodmin  v.  Vendebendy,  or  Roth- 

erham,  517,  518,  519  ;  ii.  306 
Boehm  and  Rogers  ii.  14 

v.  Wood  223.  250.  444 

Bogan  and  Sir  C.  Shovel  319 

Bolingbroke's  (Lord)  case         307 
Bolland  and  Flight  201.  208 

Bolton  (Lord)  and  Deverel,     331. 

335 


INDEX    TO    CASES. 


XXI 


Page 

Bond  and  Chapman  628 

V.  Hopkins  397 

V,  Kent  ii.  60 

and  Wright  222 

Bonham,  or   Thompson,   and 

fVilliams  440 

Bonner  v.  Johnston  226,  227 

Bonnett  V.  Sadler  211 

Bonney  v.  Ridgard,     ii.  53,  54,  55 
Boone  v.  Eyre  422 

Boore  and  Marquis  of  Hert- 
ford •  437 
Booth  and  Cook  156 

and  Hope  216 

and  Whale  ii.  54 

Boothby  V.  Walker  227 

Boston  and  the  King,  114;   ii.  139 
Boswell  V.  Mendham  353 

Bosworth  and  Stratford  89 

Boteler  V.  Aliington  194 

Botelers  and  Heale,    ii.  61,  62.  74 
Botting  V.  Martin  79 

Bottomley  v.  Lord  Fairfax        519 
Boughton  V.  Jewell  530 

Boulter  and  Bird  107 

and  Baldwin  282 

Boulton  and  Doe  249 

Bourne  and  Hunt  388 

Bovie's  (Sir  Ralph)  case,      ii.  166 
Bowden  and  Jones  316 

Bowen  and  Morris  53.  86 

Bower  and  Allan  127 

Bowerbank  and  De  Kavilland, 

ii.  17 
Bowers  v.  Cator  116 

Bowes  V.  Heaps  266 

and    Lady    Strathmore 

(Term  Rep.)  181 

and    Lady    Strathmore 

(Yes.  jun.) 
Boicles  V.  Atkinson 
Bowles  V.  Rogers,  41.   171. 


519 
317 

74 


n 


V.  Stewart 

Bowyer  v.  Bright 
Boydell  V.  Drummond 
Boyer  v.  Blackwell, 
Boyman  v.  Gutch 
Boys  and  Ayerst 
and  Dies 


7,8. 


397 

294 

94 

67.  292,  293 

244 

89 

ii.  281 


Page 

Bracebridge  v.  Cook  463 

V.  Heald  74,  n. 

Bradbear  and  Blagden,  87.  90.  93, 

94.  105.  109.  113 

Bradley  and  Brookfield  67 

and  Westcott  ii.  375 

Bradshaw  v.  Bennett,  31.  33.  242  ; 

ii.  18 
227 
20 


n. 


II. 


V.  Bradshaw 

Bradshmu  v.  JSlidgeley 
Bradstreet  and  Shannon,   130.  201 

ii.  17 

104 

257 

52 

228 

25 

165 

266 

ii.  306 

ii.  299 

ii.  274 

202 

261.  265 

64.  434 


Bragg  and  Calton 
Braithwaite  and  Howard 
Brakespear  v.  Innes 
Brarnah  and  Wheeler 
Bramby  v.  Teal 
Braniley  v.  Alt 

and  Beaumont 

Bramston  and  Whichcote 
Bramton  v.  Barker 
Brand  v.  Ackerman 
Brandling  v.  Ord 
Brandon  and  Flint 
Brandt  and  Dews 
Brasier  and  Lechmere, 
Bralt  V.  Ellis,  45.  235.  238 ;  App. 

No.  7 
Bray  and  Lowndes  248.  342 

Braybroke  (Lord)  v.  Inskip,  351  ; 
ii.  51.  262 
Brayne  and  MoUett  79 

Breach  and  Doe  250 

Brealey  v.  Collins  310 

Brebner  and  Baton  304 

Bree  v.  Holbech  554.  564 

Breedon  v.  Lreedon  ii.  34 

Bret  and  Biscoe  223 

Breton  (Le)  and  Hargrave,  ii.  277 


Brace  v.  Duchess  of  Marl- 
borough,    479.  547  ; 


Brett  V.  Marsh 

Brett    V.    Sambridge,   626 

Brettargh  and  Blundell 
Brewer  and  King 
Bricknell  and  Bailiffs,  &c. 

Tewksbury 
Bridger  v.  Rice 
Bridges  and  Kingdome, 

and  Philips 

V.  Robinson 

Bright  and  Bowyer 
and  Wall " 


ii.  307   Bright\ven  and  Doe 


566 

;    App. 

No.  19 

275 

ii.  168 

of 

167 

207 

ii.  147 

379 

ii.  13 

294 

186 

•    350 


XXII 


INDEX    TO    CASES. 


Page 

Brig's  case  208.  235.  554 

Bringloe  and  Mallom  ii.  108 

Brisco  and  Huddleson  88,  89 

Bristow  and  Moneypenny  181 

and  WaddingtoJi  82 

British  JWuseuin  (  Trustees  of  the) 

and  Duke  of  Bedfordy      ii.  81 
Brockett  and  Oxwick 
Brockhurst  and  Whitbread 


Brockwell  and  Winter 
Brodie  v.  St.  Paul 

Brook  V. 

Earl  V.  Bulkeley 

Brooke  and  Parker 
Brookes  v.  Lord  Whitworth 
Brookfield  v.  Bradley 
Brooks  V.  Day 

V.  Snaith 

and  Sowerby  ii. 


II. 


323 

113. 

115 

79 

91 

221 

ii.  269 

ii.  297 

229 

67 

552 

67 

286 

Broome  v.  Monck,  174.  180.  189. 

191 

278 

ii.  95 

ii.  92 

11.  299.  301  ; 

ii.  22 

ii.  170 

158,  n. 

5 

ii.  129 

262 

217 

204 

517 

379 

ii.  161.  167 

227,  228 

168 

196 

174 

265 

ii.  14 

241 

333.  447,  n. 

Browne  v.  Fenton,   3.  42.  48.  290. 

299    309  ;  ii.  20 

Browne  and  Kenny       ii.  267.  295 

V.  Odea  ii.  266 

Browning  and  Burden  114 
V.  Wright        162;  ii.  81.  94 


Brotherton  v.  Hatt 
Broughton  v.  Conway 
Brown  v.  Brown 
and  Burnell 

V.  Carter 

and  Chapman 

and  Corbett 

and  Elliot 

and  Evans 

Broicn  v.  Frost 
Brown  and  Fain 

V.  Gibbs 

and  Goodrick 

Brown  V.  Jones 
Broum  v.  Kelty 

and  Langley 

V.  R  a  indie 

Brown  and  Robson 
Brown  and  Ryle 

V.  Southhouse 

and  Street 

and  Temple, 


Page 

Brownlow  (Lord)  and  Franklin 

172.  343 
Bruce  v.  Bainbridge  ii.  28 

V.  Rogers  262 

and  Warwick  83 

Brushfield  and  Howes  ii.  88 

Bruyn's  (Sir  John)  case  325 

Bryant  v.  Busk  278 

Brydges  v.  Duchess  of  Chandos 

176,  n. 
Brydges  and  Philips-  379 

Brydges  and  Stephens  .  463 

Brymer  and  Washington        ii.  374 
Bubb's  case  172 

Buck  V.  Lodge  227 

Buckhouse  v.  Crossby,  85.  87. 147 
Buckhurst's  (Lord)  case  535 

Buckingham  (Marquis  of) 

and  Curtis  217 

(Earl  of )  V.  Drury  362, 

363,  364 

(Duke  of)  and  Philips,    211 

and  Smallcomb  ii.  199 

Buckland  v.  Barton  ii.  375 

and  Floyd  116 

Buckle  and  Cannel  213 

V.  Mitchell,  ii.  173,  174,  175 


Buckley  and  Hill,     206,  207.  319, 

320   323. 

Buckmaster  v.  Harrop,     106.  109. 

125.  189 

Bucknell  and  Weakley  ii.  155 

Bucks  (Earl  of)  v.  Druiy,  or 

Drury  v.  Drury,  362,  363, 

364 
Budgin   and    Christ's    Hospital,  ii. 

147 
Bulkeley  and  Earl  Brook,  ii.  269 
Bull  V.  Allen  229 

V.  Price  54 

Buller  V.  Buller  188 

Bidler  and  Mortlock,6A.  104.  201. 
206,  207.  259.  261.  305. 
Buller  V.  Waterhouse  ii.  179 

Bullock  V.  Bullock  349 

and  Feme  118.  131 

and  Rex  ii.  188 

V.  Sadlier  ii.  157.  306 

V.  Thome  ii.  180 

Bumford  and  Ball  ii.  167 

Burdett  v.  Wright  492 


INDEX    TO    CASES. 


Biudon  and  Bensley 

V.  Browning 

—  V.  Kennedy 

Burg's  (Lady)  case 
Burgess  v.  Wheate 
Burgh  V.  Francis 

V.  Wolf 

Burgis  and  Rawlins 
Burke  v.  Crosbie 
Burke  V.  Dawson 
Burkett  V.   Randall 
Burlace  (Sir  John)  v 

Burnaby  v.  Griffin 
Burnell  v.  Brown 


u. 


541 


479 


Page 

264 

114 

ii.  203 

ii.  169 

283 

ii.  264 

ii.   261 

179 

58 

175 

131 


II. 


Burnett  v.  Lynch 
Burney  v.  Poyntz 
Burnham  and  Smith 
Burrell  and  Bickerton 
Burvell  and  Coverly 
Burrell's  case 
Burrough  v.  Martin 

V.  Skinner 

Burrough's  case 
Burroughs  v.  Elton 

V.  Oakley  225,  226,  227 

Burrovghs  and  Saundeys,      ii.  114 
Burrowes  v.  Lock,    6,  7.  12.  259  ; 

ii.  263 

and  Lees 

and  Walker 


'.  Cooke, 

ii.  260 
194  ;   ii.  25 
11.  299.  301  ; 
ii.  22 
39 
ii.  64 
426.  434 
234 
288 
ii.  158 
10 
47 
ii.  147 
ii.  130 


u 


54 

.  146 

152 

ii.  52 

ii.  24 


i 


Burt  and  Doe 
Burting  v.  Stonnard 
i)Urton  and  Scorbrough, 
Burton  V.  Toddy  ii.  10  ;  A  pp.  No. 

21 

Burwell  and  Wyat  ii.  223 

Bury  V.  Bury  ii.  279.  293  ; 

App.  No.  27 

Bushel!  V.  Bushell,  ii.  220,  n.  222. 

285 
Busk  and  Bryant  278 

Butchery.  Butcher  (Ves.jun.)  123 

V.  Butcher    (New  Rep.)  156 

V.  Stapely  116;   ii.  277 

Bute  (Earl  of)  and  Sir  John  Eden 

156 
Butler  V.  Capel  ii.  331 

and  Lawrenson,    207,  n.  305 

V.  Swinnerton,   ii.  85.  87.  90 

Butterwick  and  Rob  165 


Page 

Buxton  V.  Cooper  4.  205.  257 
Buxton,  ex 'parte  ii.  110,  n. 
Byrn  and  Price  ii.  115.  126 
Byrne  and  Dillon  ii.  203,  n. 
Byron  and  Creswell  362 
(Lord)  and  Deardon        506 


C. 

Cadell  V.  Palmer  ii.  357,  n. 

Cadman  v.  Horner  202.  26 1 

Cadogan    (Lord)    and    Lord 

Montford  ii.  266 

Cadogan  and  Shane,  ii.  168  ;  App. 

No.  26 

Cage  V.  Acton  461,462 

Calcraft  v.  Roebuck,  10.  297.  300  ; 

ii.  2.  20.  28 
Calland  and  Rose  295.  340 

Callaway  v.  Ward  171 

Calthorp  V.  Hayton  ii.  84 

Calton  V.  Bragg  ii.  17 

Calverlev  v.  Williams,  324  ;  ii.  25 
Calvert  and  Doe  350 

Camden  (Ear!)  and  Garrick  62 
Camelford  (Ld.)  and  Smith,  ii.  135 
Camfield  v.  Gilbert,  234.  238,  239 
Cammeyer  and  Rucker,  104,  105 
Campbell  v.  Campbell  529 

Campbell  v.  Lewis  ii.  77 

and  Lewis  ib. 

V.  Walker,    ii.  109.  115.  122 

Campion  v.  Cotton  ii.  148 

Cane  v.  Lord  Allen       ii.  113.  121 

V.  Baldwin  45.  342 

Cann  v.  Cann  343.  349.  564 

Cannel  v.  Buckle  213 

Canning  and  Barnes  ii.  281 

Cant  V.  Lord  Beauclerk  ii  301 
Capel  V.  Butler  ii.  331 

Caj^el  V.  Girdler  176.  622,  523 
Capp  V.  Topham  20,  21 

Capper  and    Mortimer,  260.   280. 
282.  284 

V.  Spottiswoode  ii.  61 

Card  V.  Jaflfray  90 

Carding  and  Lord  Verney,  ii.  269 
Careless  and  Stewart  113 

Carey  and  Bennet  College,        61. 

208  ;  ii.  24 
Carleton  v.  Leighton  ii.  264 


XXIV 


INDEX    TO    CASES. 


Page 


Carhlon  and  Loivlher,  ii.  260.  274. 

280 
Carlisle  (Earl  of)  and  Lechmere 
ii.  161,  152,  153 


Carpenter  v.  Blandford 

V.  Creswell 

and  Sorrell,  i 

Carr,  ex  parle 

and  Hill 

.— —  and  Wedderburne 


423; 

ii.  281 
245 
283,  284 
5 
194 
104 
102 


Carrill  and  Lowther 

Carroll  and  Savage,  117.  129,  130. 

180.  189;   ii.  149 


Carter  and  Brown 

V.  Home 

and  Maryon 

V.  Pritchard 

V.  Warne 


ii.  170 
ii.  130 

422 

ii.  304 

52 

208 
ii.  269 

363 
ii.  172 

115 

428 


Carter  and  Williams 

Cartwright  and  Dean 

Caruthers  v.  Caruthers 

Carwarden  and  Parry 

Cary  v.  Cary 

Caryll  and  Hayes 

Casamajor  v.  Strode,  65.  344,  345 

Casberd  v.  Ward,  512.  n.  ;     ii.  76 

Cason  V.  Round  ii.  307 

andSiadd  ii.  301 

Cass  V.  Rudele  277 

V.  Waterhouse,     92.  97.  323 

Cast  Plate  Glass   Company 

and  the  Attorney  General  154 
Castle  and  Howard 
Caswell,  Ex  parte 
Catesby  and  Mountford 
Cater  and  Bowers 
Cator  and  Jackson 

V.  Earl  of  Pembroke 

Causton  v.  Macklew 
Cavan  (Lady)  v.  Pulteney 
Cave  and  Payne 
Cavendish  v.  Worsley 
Cazenove  and  Hall 
Chaigneau  and  Baillie 
Chalie  and  Garthshore 


Chamberlain  and  Cox 
Chamberlain  and  Fell. 


24.  26 

ii.  375 

ii.  82 

116 

168 

565 

548 

ii.  88 

^3 

193 

420,  421 

66 

362; 

ii.  151 

ii.  25 

114  135; 

ii.  139 


Chamberlaine  v.  Chamberlaine 


153 


Page 

and  Phillips  158,  n. 

Chambers  v.  GrifHths  292,  293 

V.  Waters  ii.  Ill 

Champernown  and  Townsend,  447. 

509 
Champion  v.  Plummer  90 

v.  Rigby  ii.  112.  126 

Champneys  and  St.  John,      ii.  335 
Chandelor  v.  Lopus  3 

Chandler  v.  Beard  348 

Chandless  and  Baikie  552 

Chandos  (Duchess  of)  and 

Brydges  176,  n. 

(Duke  of)  V.  Talbot  38 

Chaplain  v.  Southgate  ii.  84 

Chaplin  and  Tatem  ii.  78 

Chapman  v.  Bond  528 

V.  Brown  158,  n. 

V.  Emery  ii.  161.  170 

V.  Gibson  ii.  261 

V.  Tanner  ii.  57 

Charles  v.  Andrews         257.  362  ; 

ii.  57 
Charles  and  Foster  6 

Charlton  v.  Low         518.  528  ;  ii. 

259 
Charlewood  v.  the  Duke  of 

Bedford  77,  n.  94.  104 

Charlvvood  v.  Morgan  329,  n. 

Charnells  and  Siddon  ii.  260 

Chater  v.  Beckett  84 

Cheek  v.  Jeffries  ii.  329 

and  Watkins  ii.  39 

Cheney's  (Lord)  case  152 

Cherry  and  Ferrars      ii.  170.  274. 

293 
Chesney's  case  464 

Chesterlield  v.  Janssen  265 

Chetham  v.  Grugeon  67 

Chetwynd  and  Sutton  ii.  176 

Child  v.  Lord  Abingdon     ii.  8.  20 

and  Baker  197 

v.  Godolphin  111 

and  Lord  Irnham     159.  166, 

167.  210 
Chillingworth  v.  Chilling- 
worth  59 
Chirton's  (Walter  de)  case,  ii.  137 
Chitty  and  Williams  362,  363 
Chivall  v.  Nicholls  ii.  222 
Cholmeley  and  Cockerell,     ii.  126 


INDEX    TO    CASES. 


XXV 


Page 

Cholmondley  (Marquis)  v.  Lord 

396.  506 

ii.  266 

522 


CHntori 
Cholmondleii  v.  Orford 
and  Pitt 


Cholmondeley    (Earl    of) 

Lord  AValpoIe 
Chomley's  case 
Christian  and  henhouse 

Chriitie  and 

V,  Attorney-General 

and  Bexwell 


and 


152 
ii.  158 
ii.  129 

3U9 

21,22 

23 


Christ's  Coll.  V.  Widdrington 


Hospital  V   Budgin 

(Church  V.  Legeyt 
Churchill,  ex  jmrte 

V.  Grove  542 

Churchman  v.  Harvey 

V.  Ireland 

Chute  and  Selby 
Clanmorris  and  Blosse 
Claphani  and  Wilson 
Clare  v.  Ear!  of  Bedford 
Clare  v.  Clare 
Clark  and  Armiger 

V.  Clark 

and  Fullagar 

V.  Hackvvell 


301 
147 
233 
110 
285 

ii.  377 

182 

ii.  84 

340 

ii.  10 

ii.  263 

ii.  355,  n. 

216 

ii.  300 
223 
131 


118. 


and  Kirk,  or  Heisier    ii.  170 


and  Jervoise 
V.  Uplon 


Clarke  and  Dew 

V.  Elliott 

V.  Faux 

and  Gibson 

and  Goodwin 

V.  Grant 

v.  Royle 

and  Smith 

v.  Terrel 

and  Willett 

V.  Wilson 

Clarkson  and  Morris 
Clavell  and  East  India  Comp. 

ii.  170 
Clay  v.  Clay  394,  395 

Clay  v.  Shayye  358  ;  A  pp.  No.  15 
Clayton  and  Fife  33.  134.  230 
Clayton  v.  Lord  JVilton  ii.  164 
Clayworth  and  Cooke  ii.  300 

Clements  and  Hamilton  261 

Clerk  V.  Clerk  ii.  108 

VOL.     I.  D 


•  55 
64 
192 
226,  227 
369 
223.  226,  227 
250 
138 
ii.  58.  66 
26,  27 
87 
243.  430 
226 
348 


Paga 
Clerk  v.  Nettleship  ii.  167 

V.  Wright  90.  115 

and  Young    6.  205.  259,  260 

Clermont  (Lord)  v.  Tashurgh  205 
Clifford  v.  Laughton  323 

Clifton  v.  Walmsley  157 

Clinan  v.  Cooke    90,  92.  104.  124. 
127.  223 
Clinton  and  Trefusis  70  ;   ii.  8 

(Lord)    and    Marquis 

Cholmondley  396.  506 

Ciissel  and  Leakins  3 

Clobery  and  Ker        260.  295.  297 
Clough  and  Metcalf  47 

Clowes  and  Higginson,  32,  33.  38. 
•     91.  109.  134.  136.  140.  205, 

230.  318. 
Clynn  v.  Littler  184 

Coare  v.  Creed  15,  16 

Cock  V.  Richards  169 

Cocker  and  Fludyer        ii.  5,  6.  25 
Cockerell  v.  Chomeley  ii.  126 

Cockes  v.  Sherman  ii.  274 

Codd  and  Verlander  93 

Coffin  V.  Cooper  434 

Coghill  V.  Holmes  ii.  377 

Coke  v.  Wilkcocks  ii.  308 

Culclough  V.  Sterum  58 

Coldcot  (Dr.)  V.  Serjt.   Hide, 

or  Hill  161  ;  ii.  102 

Cole  and  Cordage  124 

V.  Gibbons  264,  265 

and  Pordage  49 

V.White  115,116 

Colegrave  v.  Dias  Santos  38 

Coleman  and  Binstead,      116.133 


V.  Upcot  85.  87,  88 

Coles  and  For  shall,     552;    ii.  194, 

'      195,  196;   App.  No.  20 

Coles  and  Hunt  501.  543 

v.  Trecothick,  87.  101.  104. 

106.  109.  123.  206.  259,  263. 

282.  285;  ii.  110.  117. 

Collet  V.  De  Gols,    511  ;  ii.  286. 

287,  288,  289. 

CoUett   and   Lloyd,  424.  429.  435, 

443  ;  ii.  20. 


v.  Thomson 

v.  Woollaston 

and  Shore 

Collier  v.  Jenkins 
and  I^ong 


240 

259 

532 

189.  299 

355  ;  ii.  27 


Collier  and  Vansittart 

— and  Wheeler 

CoUinge's  case 
Collins  V.  Archer 

and  Benyon 

and  Bliss 

and  Brealey 

CoUyer  v.  "Willock 
Colinan  v.  Sarrell 


INDEX    TO    CASES. 


Pas;c 

69 

28.  86 

ii.  26 

ii.  31C 

ii.  34 

344 

310 

ii.  16 

ii.  378 

ii.  168 

369 

161;  166 

;  ii.  2.  4. 

65 


Coltman  and  Dolin 
Colton  V.  Wilson 
Colvile  V.  Parker  ii. 

Comer  V.  Walkleij,  \87,n 

"l3.  20.  45,  46 
Commissioners  of  Appeals  in 

Prize  Causes  and  Willis,  iir  14 
Compton  and  Lady  Bellasis, 

ii. 

and  Ford 

Compton  V.  Richards 
— —  and  Smith 
Corayn  and  O'Gorman 
Conolly  and  Baxter 

— V.  Parsons 

Conran  v.  Barry 


99. 


138 

87 

37 

104 

ii.  170 

368 

24,  25.  27 

68,  n. 

Constable  and  Walker  106.   109. 

151.  238 

Constantine  and  Topham         ii.  57 

Conway  and  Broughton  ii.  95 

V.  Shrimpton  257 

Cook  V.  Booth  156 

and  Bracebridge  463 

and  Sir  John  Burlace   ii.  260 

vid.  Cooth  V.  Jackson. 

— : — and  Fountain  464 

and  Thomas  79 

Cooke  V.  Clayworth  iL  300 

■ and  Clinan,90.  92.  104.  124, 

125.   127.  323 

V.  Cooke 

and  Doe 

V.  Fowndes 

and  Hockin 

and  Milligan 

and  Mussell 

"v.  Soltan 

V.  Tombs, 


176. 


522 
506 
ii.  92 
325 
303 
94 
350 
84.  93.  95.  97. 
115 
Cookson  and  Wbelpdale,     ii.  119. 

124 
Coombs  and  Roper  333.  432 

Cooper  and  Aldrich  ii.  70 


Cooper  and  Buxlon 
Cooper  and  Coffin 

V.  Denne 

and  Lover'dge 

and  Martinez 

V    Smith 

V.  Tynman 


Coofe  V.  Mammon 
Cooth  V.  Jackson 

Cope  and  Dukin 
and  Glover 


Pase 

4.  205.  2.'i7 

434 

340 

ii.  263 

468 

90.  94.  101 

ii.  265 

ii.  279 

96.  113  115. 

275 

•    ii.  13 

ii.  81 

62 

396 

.369 

62,  n. 


Copeland  v.  Stephens 
Copner  and  Price 
Coppard  and  Harrison 
Coppin  V.  Coppin      ISO; 

67.  69,70,71,72,73 

v.  Fernyhough    339  ;  ii.  293 

Corbett  V.  Brown 
Corbet  v.  Corbet 

and  Ewer  538  ;   ii.  52 

and  Kenn 


Cordage  v.  Cole 
C order  v.  Drakeford 
and  Mason       299. 

v.  Morgan 


Cordley  and  Beckett 
Cordwell  v.  Mackrill 
Cormick  v.  Trapaud 
Cornelius  and  Simmons 
Cornish  v.  Rowley 
Cornwall  v.  Williams 
Cornwallis's  case 
Corp  and  Dreu'e 
Corpe  and  Lampon 
Coryton  and  Heliier 
Cory  v.  Gertekcn 
Coslake  v.  Till 
Coster  v.  Turnor 
Costigan  v.  Hastier 
Cotbatch  and  M'Cullock 
Cotter  v.  Layer 
Cotterell  v.  Hampson 

V.  Button 

Cottington  v.  Fletcher  112  ;  ii,  136 
Cottle  and  Withy  202.  216.  223 
Cotton  and  Campion  ii.  148 

Cotton  V.  Everall  ii.  32,  n. 

Cotton  V.  King  ii.  161 

v.  Lee  85 

Couch  V.  Stratton  362 

Court  and  Oliver        ii.  110 


6 

363 

54.  66 

355 

124 

84 

304.  339 

358 

ii.  296 

ii.  297 

ii.  178 

118.  131 

422.  430 

208 

ii.  276 

298.  353 

ii.  62,  n. 

158,  n. 

ii.  263 

429 

434 

204.  210 

70 

183,  184 

ii.  32 

389.  391 


INDEX    TO    CASES. 


XXVll 


Page 

Courtowii  (Lord)  and  Under- 
wood ii.  222.  274 
(JoKssmaker   v.  Sewell   356  ;    App. 

No.  14 
Coutts  and  Wallwyn  ii.  159 

Coventry  and  Swanborough         41 
Coveriij  V.  Burrell 
Coward  v.   Odingsale 
Cowell  V.  Simpson 
Covvper  and  Stiles 
Cox  V.  Bate  man 

V.  Chamberlain 

V.  Paxton 

and  Sheldon,         ii.  222 

and  Swan 


340 


Craddock  and  Wilhams 
Cracrofl  and  Rex 
Craddock  and  Lake 
Crafts  V.  Tritton 
Cragg  V.  Holme 
Craig  V.  Hopkins 
Crane  v   Drake 
Crawford  and  Gordon 
Crayford  v.  Crayford 
Creasy  and  Haycraft,  5  ; 
i 
Creed  and  Coare 
Crespigny  v.  Wittenoom 
Creswell  v.  Byron 

and  Carpenter 

and  Watts 

('rethorii  and  Harding 
Crewe  v.  Dicken 

Cripps  V.  Jee 
V.  Reade 

Crisp  and  Cruso 

V.  Heath 

V.  Pratt 

Crispe  and  Lloyd 

Crockford  v.  Alexander, 

and  Knight 

V.  Winter 

Croft  V.  Slee 

Croftonv.  Ormsby  ii. 

Croker  and  Legge 

Crompton  and  Sale 

Crop  V.  Norton  208. 

Crosbie  and  Bnike 
Crosby  v.  Arkwright 

V.  Middleton 

V.  Percy 


288 

428 

ii.  60 

131 

ii.  149 

ii.  25 

ii.  149 

278 

246 

548 

73 

129 

251 

203 

558,  n. 

ii.  54 

263 

ii.  102 


n. 


Pago 

Crosby  v.  Wadsworth    75.  79.  82, 

83,84 

ii.  179 

85.  87. 

147 

ii.  82,  83 

ii.  168 

ii.  120 

181 


Cross  V.  Faustenditch 
Crossby  and  Buckhouse 


263,  n. 
15,  16 
ii.  327 
362 
245 
ii.  262 
ii.  296 
;   ii.  50 
ii.  138 
554 
20 
542 
ii.  146 
339 
173.  217 
88.  100.  248 
ii.  17 
ii.  375 
170.  269.  291 
307 
ii.  194 
ii.  133. 
137.  139 
68 
327 
168 
241 


Crosse  V.  Young 
Croucher  and  Jones 
Crowe  V.  Ballard 

and  Barnes 

Crowder  v.  Austin  28 

Crowther  and  Tawney  93 

Croyston  v.  Banes  110 

Cruso  V.  Crisp  20 

Crutchley  v.  Jernirigham  226 

Cubbidge  v.  Boatright  ii.  53 

CufFv.  Penn  133 

Culpepper  v.  Aston   ii.  32.  48.  281 
Cundall  and  Bell  ii.  259 

Cunningham  v.  Williams  60 

Cunynghame  and  Rose         90.  95. 
189.  176.  179 
Curling   v.    Shuttleworth,         243  ; 

ii.  14 

Ctirrer  or  Comer  v.  Walkleij     187, 

n.  ;   ii.  2.  4.  13.  20.  45,  46.  65 

Curteis  and  Pincke,  246.  295.  427. 

434 
Curtis  V.  Marquis  of  Bucking- 


ham 

-  and  Potts 

-  V.  Price 


210 


11. 


and  Williamson 

Curwyn  v.  Milner 
Curzon  and  Aston 
Custance  and   Holmes 

Cuthhtrl  V.  Baker  291 
Cutler  V.  Simons 

D. 

Dakin  v.  Cope 
1  Dalby  v.  Pullen 

and  Rex 

Dale,  ex  parte 

V.  Lister 

V.  Sollett 

Dalton  V.  Hammond 
Daly   and    Kennedy    58. 
539 

V.  Osborne 

Damon  and  White 


217 
268 
58 
ii.  33 
264 
ii.  307 
ii.  263,  n. 
297 
;  ii.  42.  45 
228 


ii.  13 

298.  434 

ii.  139 

ii.  75 

302 

234 

460 

617,  n. 

;  ii.  273 

223 

259,  260 


ixvm 


INUKX    TO    CASF,i5. 


Dannah  and  Wright 
Danvers  and  Doe 


Page 

Dana  and  Matthews  223 

Dancer  and  Ebrand  ii.  147 

Dane  and  Emanuel  170 

Daniel  v.  Adams  1 04.  1 97.  200.  206 
Daniels  v.  Davison  173.  231,  299  ; 
ii.  291.  293 
107 
397 

and  Hunt  ii.  84 

D'Aicy  V.  I'dake  517,  n. 

Dare  v.  Tucker  38.  629 

Darkin  v.  Marye  61 

Darloy  v.  Singleton  262 

Danis's  Case    ^  174 

Darwin  v.  Lincoln  ii.  329 

Dashwood  and  Musgravc  196,  197 
Daubuzand  and  Pye  ii.  103 

Davenport  and  Vale  67 

Davids  V.  Adams  122,  n. 

Davidson  v.  Gardner  ii.  113 

Davie  v.  Beardsham  171.  174.  177 

v.  Sacheverell  ii.  S3 

Davies  v.  Austen  ii.  264,  265 

and  Denton  ii.  150 

v.  Jones  200 

and  Owen    87.  200 ;  ii.  2.  9 

v.  Penton  215 

and  Selkrig  ii.  130 

and  Shirley  308 

Davis  V.  Hone  203,  204 

Davies  v.  Earl  of  Strathmore 

ii.  196 

and  Swift  ii.  141,  142 

Davis  v.  Thomas  155 

Davis  and  Thomas     165.  1G3.  256 
Davis  and  Whitworth  171 

and  Vv'ilks  276 

Davison    and    Daniels    173.    231. 
299  ;   ii.  291.  293 
Davis's  case  252 

Davy  V.  Barber  ii.  2.  8.  9 

Davys  v.  Howard  ii,  152 

Dauh  and  Berkeley  229 

Dawes  V.  King  3 

Dawson  and  Addison  ii.  108 

Daivson  and  Burke  ii.  175 

Dawson  v.  Ellis  99,  n. 

and  Frame  117 

V.  Massey  ii.  116.  300 

Day  V.  Arundel         ii.  304,  n.  306 

and    Attorney-General     65. 

109.  1S9' 


Day  and  Blennerhasset 

and  Brooks 

V.  Finn 

v.  Newman 


Page 

ii.  113 
552 
321 
258 
Deacon  aiid  Foster  ii-  23 

v.  Smith        ii.  151,  152,  153 

Dean  (Lord)  and  Kinnaird  3,4,  n. 
Dean  and  Leech  ii.  171,  172 
Dean  and  Hodgson  ii  286 
Deane  v.  Rastron  260 
Dcardon  v.  Lord  Byron  606 
Deardon  and  Keene  360.  394.  487 
Dearie  v.  Hall  ii.  265 
Dearmer  and  Smith  181 
Debar  and  Taylor  ii.  103 
De  Bernales  v.  Fuller  ii.  17 
V.  Wood                     .  ib. 


Deem  or  Powell  v.  Howorth, 

h.  65.  293 
De  Faria  and  Gowland    264,  265, 
266,  267.  269,  270,  271 
De  Gols  and  Collett  511  ;  ii.  286, 
287,  288,  289 
De  Graves  v.  Smith  .5 

De  Havilland  v.  Bowerbank  ii.  17 
Dehew  and  Sanders  ii.  259 

Delane  v.  Delane  ii.  136 

Deligne  and  Saunders  ii.  260 

De  la  Cour  and  Haigh  170 

Denew  v.  Deverall  38.  49 

Denison  and  King  ii.  143 

Deniston  and  Lord  Forbes  ii.  222 
Denn  v.  Cartwright  ii.  269 

v.  Kemeys  466 

and  Ireson  ii.  221 

Denne  and  Cooper  340 

Denny  and  Hamilton  ii.   132 

Denton  v.  Davies  ii.  150 

Denton  v.  Slewart  or  Seward    116. 

231 
Derby  Canal  Company  v.  Wil- 

niot  ii.  197 

Derival  and  Doivt-c  521 

Derrison  and  Shippey  93.  102 

Deschamps  and    Alley   424,   426. 

428 
D'Esterre  and  Wheeler  116 

Deverall  and  Denew  38.  49 

and  Remington  260 

Deverell  v.  Lord^Bolton  331.  335 
Devercll  and  Lord  Ossukton  333 
Devon  (Duke  of)  and  Barker  ii.  S3 


INDEX    TO    CASES. 


XXIX 


Page 

Devonshire    {Duke  of)    and 

JWayquis   of  JYonnanbij   99. 
131.  212.  214 
Devereux  and  Winter  128 

Dew  V.  Clarke  192 

Dewdney,  ex' parte  395 

Devves  v.  Brandt  261.  265 

38 

30 

358 

36  ; 

ii.  50 

354 

ii.  221 

122 

122,  n. 


Dias  Santos  and  Colegrave 

Dias  and  City  of  London 

Dibbin  v.  Baker 

Dick  V.  Donald 

Dicken  and  Crewe  340  ; 

and  Eytoij 

Dickens  and  Morecock 
Dickinson  v.  Adams 
Dickinson  v.  Baskerville 
Dickensorr'v.  Dickenson  346  :  ii.  35 
Dickenson  v.  Heron  438  ;   ii.  6.  20. 

28 
Dickenson  v.  Lockyer 
V.  Shaw 


Dickson  and  Atchison 
Digs  V.  Boys 
Dighton  and  Lane 
Dike  V.  Ricks 
Dillon  V.  Byrn 

V.  Leman 

-. and  O'Falion 

and  Powell, 

Ditchfield  and  Ulrich 
Divett  and  Powell 
Dixon  and  Adderly 

V.  Astley 

and  Stammers 

Dobell  V.  Stevens 
Dobson  V.  Leadbeater 
Dodd  and  Beable 

and  Hine 

Doe  V.  Abel 

V.  Allsop 

V.  xVndrews 

V.  Archer 

V.  Benson 

V.  Bland 

V.  Boulton 

V.  Breach 

V.  Brightwen 

V.  Burt 

V.  Calvert 

V.  Cooke 

V.  Danvers 

■ V.  Greenhill 


92 


u.  52 

ii.  141 

278,  n. 

ii.  281 

ii.  149 

ii.  48 

ii.  203,  n. 

390 

ii.  243 

;   ii.  291 

153 

136 

202 

226,  227 

158 

4 

ii.  305 

ii.  376 

222.  280 

255 

ii.  223 

ii.  299 

ii.  272 

135 

154 

249 

250 

350 

152 

350 

506 

397 

544 


Page 

Doe  V.  Hilder  492.  608 

V.  Hogg  ii.  208 

V.  Hopkins  ii.  160 

V.  Jackson  249 

V.  James  ii.    157 

V.  Jesson  390,  391 

V.  Jones  389 

V.  Lawder  249 

V.  Lea  135 

V.  Luff  kin  ii.  270.  292 

V.  Lynes  298,  n. 

V.  Manning  ii.  160 

V.  Martin  ii.  179 

V.  Martyr  ii.  160.  169 

V.  Micklem  158,  n. 

V.  Morris  ii.  156 

V.  Oxenden  152 

, V.  Pegge  469.  483 

i V.  Perkins  10 

I V.  Philips       493,  n.  ;   ii.  327 

V.  Plowman  509 

V.  Pott  177,  n. 

V.  Putland  502 

V.  Routledge,       ii.  157.  170 

V.  Sayer  249 

V.  Scott  470.  488 

V.  Smith  250 

V.  Stace  492 

V.  Staple  470.  483.  485 

V.  Sybourn  470.  485 

V.  Waller  249 

V.  Wrott  469 

D'Ohti'  and  S.  S.  Company       160 
Dolin  V.  Coltnian  ii.  168 

Dolland  and  Lyster,    541  ;   ii.  129 
Dolman  (Sir  Thomas)  and 

Smith  434 

Doloret  v.  Rothschild        202.  429 
Dolphin  and  Eyre  ii.  222.  308 

Dolton  V.  Hewen  ii,  39 

Donald  and  East  India  Com- 
pany 213  ;   ii.  300,  301 


and  Dick 


Donegal  and  Bernal 
Donovan  and  Pitt 

V.  Fricker 

Doran  v.  Wiltshire 
Dormer  v.  Parkhurst 
Dorrien  and  Kerrison 
Doubble  and  Poivell 
Douglas  V.  Ward, 
V.  Whitrong 


368 

264 

ii.  278 

ii.  19 

ii.  35 

397 

ii.  161 

42.  296 

161.  172 

187 


INUKX    TO    CAS  lis. 


Douglas  V.  Yallop 
Downes  and  Bartlett 

V.  Glazcbrook 

and  Wood 


II 
121 


Pauf 
552 
602 
112 
126 
521 
316 

50 
11.  64 

84 


Dowse  V.  Derivall 
Dovvson  and  Pickering 
Doyley  v.  Countess  of  Powis, 
Drake  and  Crane 
Drakeford  and  Corder 
Drapers  Company  v.  Yaidly,  ii. 

293 
Drayson  v.  Pocock  ii-  51 

Drewe  v.  Corp 
Drewe  v.  Hanson 

and  Payne 

Driver  and  Gaby 
Drummond  and  Boydell 


Dyer  v.  Pullency 
Dyke  (uul  Jones, 
Dyke  v.  Sylvester 

E. 


Page 

173 

45.  235.  238 

351 


Earl  V.  Baxter  338 

Earl  V.  jRo^-cri'  164,  165,  n. 

Earle  and  Hungerford  ii.  179 

and  Senhouse,      ii.  171.  297 

and  Wing  326 

Early  v.  Garrett  313.  560 

298.  353    East  India  Company  v.  Clavell, 

293,  294 

ii.  199 

45  ;  ii.  14 

94 


54 


and  M'Ecod  ii 

Drury  and  Drury,  or  Earl  of 

Bucks  362,  363,  364 

V.  Man 

Du  Cane,  ex  parte  ii 

and  Howard  ii 

Duckentield  v.  Whichcott 


460 

112 

119 

3 


Dudley  (Lord)  and  Attorney- 

ii 


General 
V.  Dudley 


V.  Foliott 

Duft'el  V.  Wilson 
Dukes  and  Beaumont 


115 

517 

ii.  82 

287 

37 

109,  110 

126.  269 

ii.  32 

22G 

108 


Dumbell,  ex  parte,         ii. 
Dunbar  v.  Tredennick,  ii 
Dunch  V.  Kent 
Duncombe  and  Younge 
Dunn  and  Maclean 
Dunsany  (Lord;  and  Latouche 

ii.  220,  n. 
Dunsford  and  Eyre  5 

Durand  and  Hart  153 

Durdin  and  Gaskell  ii.  282 

Durell  and  Noble  325 

Durham   (Bishop  of)   and 

Morrice  68 

Dursley   (Lord)   v.  Fitzhard- 

inge  ii.  268 

Dutch  V.  Warren  234 

Dutton  and  Cotterell  389.  391 

Dyer  v.   Dyer,  ii.    13-5.    139.    141. 

144 
Dyer  v.  Hargrave,  290.  310.  430  ; 

ii.  10 

Dyer  and   Price,    139,    146.   149, 

150.  309 


ii.  170 

V     Dnn'ilfl     "^1  ^  '    ii 

300,301 
46 

V.  Hensley 

Eaton  V.  Lyon 

157 

and  York 

ii.  127 

Ebrand  v.  Dancer 

ii.  147 

Echliff  V.  Baldwin 

217 

Edden  v.  Read 

234 

Edelph  and  Pitt.s 

ii.  274 

Eden  (Sir  J.)  v.  the  Earl 

of 

Bute 

166 

Edgar  and  Thring 

ii.  307 

Edin  V.  Battaly 

ii.  266 

Edmunds  and  Powell 

32.  134 

Edney  and  Jones,  31.  34 

47.  134 

Edridge  and  Bengough,   ii.  357,  n. 

Edwards,  ex  parte 

ii.  259 

and  Elliot,      243  ; 

ii   C6.  74 

and  Fournier 

226 

and  Garstone 

67 

V.  Harvey 

ii.  24 

\t    l-T  p'l  thfr 

268 
<      47 

V  .    XX  CU  lllCl 

——'•^-^     Y,     j.iV^^J^Jlliii 

and  HoUis,  74,  n.  77,  n.  214 

or  Whiteing  and  lloliis,     114 

V.  JM'Leay  665 

and  Moore  113 

and  Perry  ii.  84 

and  Williams  302.  445 

Effingham   (Lord)  and  Lord 

Portsmouth  394 

Egerton  and  Head  ii.  304 

V.  Jones  219 

—  V.  Matthews  85 

Eggington  V.  Flavel  60 

Egremont  (Lord)  v.  Hamilton  395 
Ekins  and  Bailey  ii.  38 

and  Pippin  160 

-i V.  Tresham  3,  4 

Elderton  and  Lausdown  60 


INDEX    TO    CASES. 


XXXI 


Pa;!e 

Elderton  and  Spunier     47;   ii.  16 
Eldrklge  v.  Porter  223 

Elever  and  Amcourt  245 

Eliason  and  Parr  ii.  169 

Ellard  v.  Lord  Llandaff,  203,  204. 

210 
Elliot  V.  Brown 

V.  Edwards 

V.  Elliot        ii 

V.  Merryman, 


Evitt  and  Adainson 
Ewer  V.  Corbett,    533  ;   ii. 

and  "White 


Elliott  and  Clarke 

and  Robinson 

Ellis  and  Brati 


11  129 

ii.  6G.  74 

40.  142.  144. 

ii.  32.  38,  39. 

52.  56 

226,  227 

329 

45.  235.  23S ; 

App.  No.  7 

99,  n. 

ii.  355,  n. 

ii.  37S,  379 

223 


Ellis  and  Dawson 

and  Knight 

Ellison  V.  Ellison 

Elniherst  and  BIyth 

Elmore  v.  Kingscote  90 

Elton  and  Enrronghs  ii.  130 

Enianuel  v.  Dane  170 

Emerson  and  Andrews  67 

and  Riddle  ii.  132 

Kniery  and  Chapman  ii.  161.  170 
Emery  v.  Grocock  350.  509  ;  ii.  27 
Emery  v.  n'ase  197.  199,  200. 
261.  274 
Emmerson  v.  Hetlis  53,  S3.  94. 
102.  104.  106,  107.  293 
Emmott  and  Andrews  ii.  375 

-■  rhart  and  Gunnis  31.  33.  134 

Errington  v.  Annesley  202 

and  Randall  ii.  122.  124  ; 

Esdaiie  and  0:-:cnham  ii    57 

Esdaile  v.  Slephensun        219,  220. 

291.  434  ;   ii.   10 

Estcourt  V.  Estcourt  362 


Paas 

"8 
52.  54. 
56 
39.5 
Exeter  (Bishop  ot')  and  Gnlly, 

ii.  160.  163 

(Bishop  of)  and  Hill, 

ii.  157.  160.  168 
„  (Fishon  of)  and  Wyvill,  280 
Exmoulh  {Loid)  and  Oxenden 

ii.  11.  27 
I  Eyles  and  Hooper 

and  Hanger 

I  Eyre  and  Boone 

I V.  Dolphin 

I V.  Dunsford 

[ and  Holland 

V. Iveson 


Evans  V.  Bicknell  '468. 
ii 

V.  Brown 

V.  Griffith 

V.  Luellyn 

and  Peacock 


89.  520  ; 
262.  300 
262 
264 
262 
265,  266 
84 
ii.  86 
Evelyn  v.  Evelyn  188 

V.  Templar  ii.  159,  160,  161. 

167 
Everall  and  Cotton  ii.  32,  n. 

Everard  and  Re,\  324,  n. 

Everest  and  Wickham  226 


li.  137 

257.  289 

422 

ii.  222 

5 

89 

110 

V.  Lord  Middleton,         91,  n. 

V.  Popham  91.  125.  211. 

429 
Eyton  V.  Dicken  354 

F. 

Fagg's  case,  or  Fagg  and 

Sherly  ii.  260 

Fain  v.  Avers  ii.  103 

V.  BVown  -    204 

Fairbain  and  Adams  151 

Fairchild  v.  Newland  ii.  243 

Fairclaim  v.  Xewland  ii.  242 

Faircloth  v.  Gurney  ii.  336 

Fairfax(Lord)  and  Eottomley  519  ; 

ii.  350 

Fairfield  v.  Birch         ii.  165.  App. 

No.  25 

Falkland  (Lady)  and  Strode      155 


V.  Roberts 

V.  \  aushan 


Fallon,  ex  parte 
Fane  v.  Spencer 
Farebrother  v.  Ansley 

and  Bethune 

V.  Prattent 

V.  Simmons 

and  Yates 


327 

338 

22 

234 

48 
107 

48- 

Farguson  v.  3Iaitland  263 

Farley  and  Farquhar,  ii.  14.  16.  18 
Farlow  v.  ^Veildon  67 

Farmer  v.  Rogers  165,  n. 

V.  Robinson  105 

and  Shelling  155 

Farmer  v.  Wardell  264 


INDEX    TO    CASES. 


Fafquhar  v.  Farley, 
and  M'Queen 

Fair  V.  Newman 
Fanell  and  Whitmell 
Farrer  v.  Billing 
V.  Fairer 


Page 

ii.  14.  16.  18 

294.  353  ; 

ii.  20.  26.  295 

ii.  54 

214 

342 

162 

233.  287 

166 


V.  Nightingale 

Farrington  and  Bittersbee,  ii 
Fauconberge  and  Fitzgerald  ii.  279 
Faulkner  and  Morse  ii.  263,  264 
Fausset  and  Whitfield 
Faustenditch  and  Cross 
Faux  and  Clark 
Favvcett  and  Longchamps 
Fawell  V.  Heelis 
Featherstonhaugh  v 


ii.  265 
ii    179 
369 
152 
u.  62.  75 
Fenwick 
211  ;  ii.  130 
ii.  76 
73 
114.  135; 
ii.  139 
Fellowes  v.  (Lord)  Gwydyr 


Factor  v.  Philpott 

ex  parle 

Fell  V.  Chamberlain 


211, 
212 

Fenhoullett  and  Scott  523 

Fenner  v.  Taylor  ii.  168 

Fenton  ami  Broione,  3.  42.  48.  290. 
299.  309  ;   ii.  20 
Fenwick  and  Featherstonhaugh, 

211  ;  ii.  130 
Feoffees  of  Herriott's  Hospital 


V.  Gibson 
Fergus  v.  Gore 
Ferguson  v.  Tadman 
Fermor's  case 
Fermor  and  Ferrers 
Feme  v.  Bullock 
Fernyhough  and  Coppin 


n. 


Ferrars  v.  Cherry 
Ferrers  v.  Fermor 

and  Manning 

(Lord)  and  Upton 

Field  and  Yea 
Fielder  v 

V.  Studley 

Fielding  and  Lewes 

and  Philips 

Fife  V.  Clayton 
Fifield  and  Twigg 
Fildes  V.  Hooker 


Higginson 


37.  92 
68 
ii.  223 
ii.  273 
464 
118.  131 
339  ; 
ii.  293 
170.  274 
464 
ii.  262 
66.  69 
531 
ii.  28 
ii.  102 
'  ii.  308 
240.  246 
33.  134.  230 
62  ;  ii.  8 
219.  333.  345, 
347 


Pagfi 
Finch  V.  Finch  ii.  141,  142 

V.  Newnham  ii.  282 

V.  Earl  of  Winchelsea      639 

Fingal  {Lord)  v.  Ross      121.  123 
Finiay  and  Flood  139 

Finn  and  Day  321 

Fish  and  Sloper  340;   ii.  196 

Fishe  V.  Rogers  450 

Fisher  and  Aubrey  38 

Fitzgerald  and  Barton       ii.  93.  97 

V.  Fauconberge  ii.  279 

V.  Foster  27 

and  Spurrier  114 

Fitzhardinge  and  Lord  Dursley, 

ii.  268 
Flavel  and  Eggington  60 

Fleetwood  v.  Green  224 

Fleetwood's  (Sir  Gerrard)  case 

ii.  199 
Fletcher  and  Coltington  112; 

ii.  136 

and  Hurd  ii.  81,  86 

and  Long  289 

and  Orlebar         171  ;  ii.  197 

and  Sibson  ii.  261 

V.  Sidley  ii.  147 

V.  Toilet  194 

Fleaureau  v.  Thornhill     208.  235. 
238  ;  ii.  16 
Flexny  and  Kellick  ii.  109 

Flight  V.  BoUand  201.  208 

FHnt  V.  Brandon  202 

Flood  V.  Finiay  139 

and  Fryer  ii.  146 

Florence  and  Tanner  ii.  293 

Floyd  V.  Aldridge  175 

V.  Bethill  325,  326 

V.  Buckland  116 

Floyer  v.  Sherard  262 

Fludyer  v.  Cocker  ii.  6,  6.  25 

Fohaine's  (Lady)  case  •    171 

Foley  and  Moore  157 

V.  Percival  172.  187.  n. 

and  Whitconib  224 


162 


Foljambe  and  Ogilvie    33.  89,  90. 
95.   103 

and  White      335,  336.  367  ; 

ii.  24 
Foliott  and  Dudley  ii.  82 

Foorde  and  Hayes  ii.  376 

V.  W^ilson  ii.  96 

Foot  V.  Sal  way  135 


[NDEX    TO    CASES. 


xxxm 


Page 

Forbes  (Lord)  v.  Deniston  ii.  222 
Ford  V.  Compton  87 

and  Fordyce  299.  427 

Fordyce  v.  Ford  ib. 

Foreman  and  Wilson  ii.  149 

Forester  and  fValdron  ii.  8.  21 
Forrester  v.  Lord  Leigh  ii.  131 
ForshaU  v.  Coles  552  ;  ii.  194,  195, 
196  ;  App.  No.  20 
Foster  and  Attorney-General     157 

and  Fizgerald  27 

V.  Foster  ii.  154 

V.  Hale  93.  128.  132 

Fort  and  Wilde  239.  341.  422.  512, 

n.  ;  ii.  10 

Forth  and  Harrison  ii.  274 

V.  Duke  of  Norfolk  540.  546  ; 

ii.  203 
Foster  and  Blake  397 

V.  Charles  5 

V.  Deacon  ii.  23 

and  Jerdon  192 

and  Norman  ii.  98 

V.  Mapes  ii.  83 

Foster  and  Savage  ii.  262 

Fothergill  v.  Fothergill  ii.  377 

Foulkes  and  Owen  (,6  Ves.  jun.) 

ii.  110 

Foulks  V.  Owen     (9  Ves  jun.  348). 

70 

Fountain  v.  Cook  464 

— —  V.  Young  ii.  299 

Fournier  v.  Edwards  226 

Founier  and   Bishop   of  W^in- 
chester 

Fowle  V.  Freeman 

Fowle  V.  Welsh 

Fowler  and  Pechell 

V.  Willoughby 

Fowndes  and  Cooke 

Fox  V.  Birch 

V.  Mackreth 

V.  Wright 

Foxcraft  v.  Lister 

JFrame  v.  Dawson 

Francis  and  Burgh 

V.  W^igzell 

Frank  v.  Marshall 

Franklin   v.  Lord 


Freebody  v.  Perry 
Freeland  and  Sayle 
Freeman  v.  Barnes 
Freeman  and  Fotvle        85. 
Freeman  and  Parsons  (Revo 

cation) 
V.  Taylor 


Page 
227 
194 

404 
87.  98 


Freemn  and  Palsey 
Freer  and  Thorp 
Freme  v.  Wright 
Frere  v.  Moore  i 

Frewen  v.  Relfe 
Fricker  v.  Donovan 
Frith  V.  Parker 
Frost  and  Broivn 
Fry  V.  Porter 

and  Wilkins 

Fryer  v.  Flood 
Fullagar  v.  Clark 
FuUarton  and  Watts 
Fuller  V.  Abrahams 
Fuller  and  De  Bernales 
Furnell  and  Zagury 
Fursman  and  Radcliffe 

G. 


n. 


Gaby  V.  Driver 
Gainsford  v.  Griffith 
Gaisford  and  Acland 


176 

541,  n. 

5 

ii.  23.  25 

368 

.  75.  265 

197 

ii.  19 

429 

217 

277 

39 

146 

223 

176 

30 

ii.  17 

278 

ii.  299,  n. 


45 


n. 


u.  298 

85.  87.  98 

ii.  83 

250 

174 

ii.  92 

227 

ii.  109.  124 

272 

116 

117 

479  ;   ii.  264 

ii.  107 

ii 

Brownlow 


11.  14 
ii.  98 
51  ;  ii.    10. 
20 
Gaitskill  and  Parnther  47 

Gale  and  Lang  419 

Gallimore  and  Moss  252 

Galloway  {Lord)  and  Sieadman 

440 
Gallon  V.  Hancock 
Gambel  and  Hilliard 
Gamson  and  Barber     ii. 


176 
267 
330,  331, 
332 
157 
ii.  107 
ii.  281 
ii.  113 
151 


and  Murless  ii 

Frederick    and    Morsehead 

App.  No. 

VOL.    I.  E 


303 
172. 
343 

142 

72; 

10 


Gape  V.  Handley 
Garbrand  v.  Allen 
Gardiner  and  Goldson 
Gardner  and  Davidson 
Gardner  v.  Lord  Townsend  ii 
Gardom,  ex  parte  85 

Garland  and   Smith  ii.    175,   176, 

177 
Garnons  v.  Swift  242 

and  Ward  532 

Garrard  v.  Girling  139 

Garraway  and  Mfvnell  ii.  274 

Garrett  and  Early'  313.  560 


XXXIV 


INDEX    TO    CASES. 


Pa  g 

62 

67 

ii.  305 

ii.  281 

ii.  151 

262 

66 

ii.  203,  n. 

ii.  136.  137 


Garrick  v.  Earl  Camden 
Garstone  v.  Edwards 
Garth  and  Hughes 

V.  Ward 

Garthshore  v.  Chalie  362 
Gartside  v.  Isherwood 

and  Tipping 

Gascoign  v.  Stut 

V.  Thwing 

Gaskarth  v.  Lord  Lowther  88. 190  ; 

ii.  21 
Gaskill  v.Durdin 
Geddes  and  Havelock 
Gee  and  Todd  ii.  10  ; 
Gee  and  Tood 
Gell  V.  Vermedum 

V.  Watson 

Gennor  v.  JVfacmahon 
George  and  Abrahm 

and  Howell 

V.  Milbanke 

Gerteken  and  Cory 
Gervoyes's  case 
Gery  and  Milnes 
Gibbin  and  Prideux 
Gibbons  v.  Baddall, 
— —  and  Cole 


Gibbs  and  Abbot 
and  Brown 


ii.  282 
245.  420 
App.No.  21 
231.  297 
191 
ii.  18 
168 
188 
210 
265 
ii.  263 
359 
276 
176 
61,  62.  74 
264,  265 
ii.  32 


n. 
199.  204. 
169. 


11 


617 
Gibson  and  Chapman  ii.  261 

V.  Clarke  223.  226,  227 

and  Feoffees  of  Heriott's 

Hospital  37.  92 

V.  Jeyes  ii.  121 

and  Lake  ii.  128 

V.  Lord  Montford  174 

V.  Paterson  424 

V.  Smith  324 

Giddings  and  Hitchcock,  254.  560 
Giffard  v.  Hort  58  ;  ii.  273 

Gifford  V.  Nugent  ii.  53,  54 

Gilbert  and  Camfield  234.  238,  239 
Gill  V.  Walson  228.  322 

Girdler  and  Capel     176.  522,  523 
Girling  v.  Garrard  139 

Glaister  v.  Hewer  ii.  146,  147 

Glazier  and  Goodright  186 

Glazebrook  and  Downes,     ii.  112 
— —  V.  Woodrow  245 

Glover  v.  Cope  ii.  81 

Godolphin  and  Child  111 

Godolphin  (Lord)  and  Duke 

of  Marlborough  ii.  81 


Goldson  V.  Gardiner 
Goleborn  v.  Alcock 
Gomeserra  and  Barrett 

Gompeitz  V. 

Gooch  and  Owen 
Gooch's  case 
Goodale  and  Middlemore 
Goodinge  v.  Goodinge 
Goodison  v.  Nunn 
Goodrick  v.  Brown 
Goodright  v.  Glazier 

— V.  Hodges 

V.  Jones 

— V.  Moses 

V.  Sales 

V.  Swymmer 

Goodtitle  v.  Jones 

V.  Meredith 

V.  Morgan 

V.  Pope 

V.  Sayville 

Goodwin  v.  Clarke 

and  Hooper 

V.  Lithbody 

V.  Lister 

and  Pimm 

Goom  V.  Aflalo 
Gordon  v.  Ball 
V.  Crawford 


Page 

ii.  281 

ii.  259 

116.  259 

223 

49 

ii.  159 

ii.  77 

155 

245 

379 

186 

ii.  139 

397 

ii.  161 

521 

360 

394.  470.  486 

181 

487.  560 

252 


484. 


187,  n.  265 
260 
70 
171.  432 
192 
397 
102 
223 
263 

(Lord  Wni.)  v.  Marquis 

of  Hertford  139 

V.  Trevelyan  91 

Gore  and  Fergus  68 

V.  Stacpole  58 

V.  Wigglesworth  ii.  269 


Gorge's  (Lady)  case,  ii.  141.  146. 

148 
Goring  V.  Nash  ii.  164.  378 

Gorman  V.  Salisbury,  146.  148,  149 
Gosden  and  Ramsbottom  139 

Gosnold  and  Sheppard  157 

Goudge  and  Lane  158,  n. 

Gough  and  Shine  ii.  259.  267 

V.  Stedman  ii.  303 

265,  266 

263 

ii.  191 


Gould  and  Nieols 

V.  Okenden 

V.  Shoyer 

Gourlay  v.  l)uke  of  Somerset   275 

Gower  and  Attorney-General  301; 

ii.  278.  306 

and  Ryder  69 

Gowland  v.  De  Faria       264,  265, 
266,  267.  269,  270,  271 


INDEX    TO    CASES. 


XXXV 


Gowlaud  atid  Mayor 
Graham  v,  Graham 
V.  Sime 


Page 

1S4 

ii.  260 
450 


Granger  and  Lord  Townshend   37 

V.  Worms  35 

Grant  and  Clarke  138 

and  Halsey  289.  346 

and  Hamilton  208 

V.  Munt  •  309 

and  Pendleton  154 

and  Routledge  43.  89 

V.  Shills  ii.  64 

Gray  v.  Gutteridge  47.  53 

and  Hatton  85 

Grayme  v.  Grayme  195 

Graysbrook  and  Hopkins  235.  237 
Greaves  v.  Ashlin  40.  133 

Green  and  Fleetwood  224 

V.  Jackson  552 

V.  Lowes  ii.  31,  n. 

V.  Smith  171.  189 

V.  Wood  428 

Greene  v.  Lambert  521 

Greenhill  v.  Doe  544 

V.  Greenhill  174 

Greenstead's  (East)  case    ii.   182, 

183.  277 
Greenaway  and  Sevier  255 

— ' —  V.  Adams  231 

Greenwood  and  Nonaille  356 

Gregory  v.  Gregory  ii,  126 

v.  Mighell  116.  275 

and  Rex  64 

Gregson  and  Blackburn  ii.  62.  66. 

74 

V.  Riddle.  441.  443 

Greswold  v.  Marsham  542  ;  ii.  285 
Grey  (Lord)  v.  Lady  Grey   ii.  141. 

144 
Griffin  and  Burnaby       194  ;  ii.  25 

V.  Stanhope  ii.  166.  179 

V.  Taylor  198 

Griffith  and  Attorney-General 

ii.  125 

and  Evans  264 

and  Gainsford  ii.  98 

V.  Heaton  ii.  9 

and  Lloyd  63.  536 

and  Twisleton  264.  266 

Griffith  and  Wood   173.  257.  302. 

662 


Page 
229 
292,  293 
262 
350  609  ; 
ii.  27 
ii.  158 
ii.  285 
ii.  lOS 
ii.  109 
ii.  119 
ii.  135 
246  ;  ii.  8 
Grueber  and  Knatchbull  203.  294 
Grugeon  and  Chetcham  67 

Guest  V.  Homfray    289.  426.  437 

and  Lewin  293.  448  ;  ii.  26 

Gully  V.  Exeter  (Bishop  of)         ii. 
160.  168 


Griffith  and  Wynne 
Griffiths  and  Chambers 

and  Spratley 

Crocock    and   Emery 


Groobham  and  Jones 
Grove  and   Churchill   642 

and  Michaux 

and  Watt 

Grover  v.  Hugell 
Groves  v.  Groves 
Growsock  v.  Smith 


Gunnis  v.  Erhart 
Gunter  v.  Halsey 
Guppy  and  Stevens 
Gurney  and  Faircloth 
Gutch  and  Boyman 
Gutteridge  and  Gray 
and  Simpson 


31 


.  33.  134 

98.  115 

230.  370 

ii.  336 

244 

47.  53 

359 

32.  45 

157 

332 


u 


Guyon  and  Smith 
Guy's  Hospital  and  Baynham 
Gwillim  v.  Stone  231 

Gwydyr  (Lord)  and  Fellowes 

211,212 
Gwynne,  ex  parte       51  ;  ii.  57,  n. 

v.  Heaton        262.  264,  265, 

266 
Gyde,  ex  parte  41 

Gyles  and  Moyse  ii.  127 

H. 

Hackwell  and  Clark  118.  131 
Haddenham  (Inhabitants  of) 

v.  Rex  ii.  106 

Haddon's  case  198 

Hagedon  v.  Laing  422 

Haigh  v.  De  la  Cour  170 

Halcot  v.  Markant  ii.  149 
Hale  and  Forster  93.  128;  ii.  132 

Hale's  case  195;  ii.  378 

Hall,  ex  parte  ii.  162 

v.  Adkinson  ii.  259 

V.  Cazenove  420,  421 

and  Dearie  ii.  265 


201. 


XXXVl 

Hall  V.  Hardy 
V.  Jenkinson 

V.  and  Keech 

V.  Noyes 

Hall  r.  Smith  9 

Hall  V.  Warren 

and  Wheate 

Hallett  and  Pennill 

V.  Middleton 

Halsey  and  Auslen 

V.  Grant 

and  Gunter 

Hamil  V.  Stokes 
Hamilton  and  Balgney 

V.  Clements 

Denny 


INDEX    TO    CASES. 


Page 

193,  199.  213 

226 

332  ;   ii.  155 

ii.  109.  126 

430:   ii.  293 


210.  274 

340 

152,  153 

ii.  103 

ii.  70 

289.  346 

98.  115 

ii.  265 

ii.  149 

261 

ii.  132 


Hamilton  and  Lord  Egremont  395 


V.  Grant 

and  Hobhouse 

Hamilton  v.  Royse 

V.  Worley 

Hammond  and  Dalton 

V.  Hill 

V.  Toulmin 


Hampson  and  Cotterell 

Hancock  and  Gallon 

and  Spurrier    279.  367 


Handley  and  Gape 
Hanger  v.  Eyles 
Hankin  and  Hicks 
Hanning  v.  Ferrers 

and  Trent 

Hanson,  ex  parte 

and  Drewe 

and  Macdonald 

•  V.  Roberdeau 

and  Scott 

Hapell  and  Belworth 
Harcourt  v.  Knowel 
Hardcastle  and  Sparrow 
Harding  v.  Crethon 

V.  Nelthorpe 

V.  Suffolk 

Hardingham  v.  Nichools 
Hardman  and  Omerod 


Hare  and  Haynes 
V.  Shearwood 


208 

ii.  208 

280.  294 

188 

460 

ii.  87 

ii.  104 

ii.  32 

177 

428, 

429 

157 

257.  289 

46 

ii.  262 

340 

ii.  74 

293,  294 

367 

49.  51 

4.  308 

2L7 

ii.  260 

178,  n. 

ii.  296 

564,  665 

152 

ii.  306 

142.  433; 

ii.  33,  n.  42 

Hardwicke  v.  Mynd  ii.  33.  51 

Hardwicke  (Lord)  v.  Vernon, 

ii.  120.  122 
Hardy  and  Hall  198,  199.  213 
V.  Reeves  ii.  297.  308 


Page 

159.  166 
159.  166 

Harford  v.  Furrier  278 

Hargrave  v.  Le  Breton  ii.  278 

■  and  Dyer        290.  310.  430  ; 

ii.  10 

and  Sedgwick  199 

Harmood  v.  Oglander        394,  395 
Harwell  and  Bennett  58 

Harnett  v.  Yielding  202.  204, 

205.  209.  306 
Harper  and  Barker  tJ2 

Harrington  v.  Hoggart       ii.  14.  16 

V.  Price  532  ;   ii.  76 

Harrington  and  Robinson     ii.  193 

V.  Secretan  224 

Harrington  v.  Wheeler  428 

Harris  and  Barnwell         288,  289. 

329.  343.  350.  353 

V.  Ingledew  ii.  307,  308 

and  Pope  204 

V.  Pugh  643 

Harrison,  ex  parte  ii.  109 

V.  Coppard  369 

v..  Forth  ii.  274 

V.  Harrison  173 

V.  Hollins  397 

V.  Southcote     ii.  69.  61.  244 
V.  Wright  216 


Harrup  and  Buckmaster,  106.  109. 

126.  189 

Hart  V.  Durand  153 

and  Wilson  104 

Hartley  V.  Peahall  341 

V.  Smith  ib. 

V.  Wilkinson  111 

V.  0'  Flaherty  648 

Harvey  v.  Ashley  ii.  295 

Harvey  and  Belch  396  ;  App. 

No.  16 

and  Churchman  ii.  377 

Harvey  and  Edwards  ii.  24 
v.  Harvey  166 

(Sir  Thomas)  v.  Montague 

ii.  283 
V.  Parker  194 

V.  Phillips  632 

and  Turner  6 

V.  Young  3 

Harvy  v.  Woodhouse  ii.  259 

Harwood  v.  Wallis  160 

Hasker  v.  Sutton  365 


INDEX    TO    CASES. 


Hastier  and  C'ostigan 
Hatchet  and  Watkins 
Hatt  and  Brotherton 
Hatton  V.  Gray 

V.  Jones 

Havelock  v.  Geddes 
Haw  and  Levy 
Hawkins  v.  Holmes 

V.  Kemp 

V.  Obeen 

and  Polyblank 

Hawkins  and  Taylor 
Hawley  v.  Staughton 
Haycraft  v.  Creasy,    5  ; 
Hayes  V.  BickerstafF 

V.  Caryll 

V.  Foorde 

V.  Kingdome 

Hayne  and  Mitchell 
Haynes  and  Birch 

V.  Hare 

Hays  V.  Bailey         289 

Hayton  and  Calthorp 
Hayward  v.  Lomax 

and  Stevenson 

Head  v.  Egerton 
Headen  v.  Kosher 
Head  ley  v.  Roadhead 
Heald  and  Bracebridge 
Heaps  and  Bowes 
Heard  v.  Wad  ham 
Hearle  v.  Botelers 

Hearne  v.  James 

V.  Tenant 

V.  Tomlin  1 1 

and  WooUam 

Heath  and  Crisp 

V.  Heath 

and  Schneider 

Heathcote  v.  Paignon 
Heather  and  Edwards 
Heaton  and  Griffith 

and  Gwynne    262.  264,  265, 

266 

Hedges  and  O'Herlihy       91.  124, 

126.  211 

Heelis  and  Emerson     63.  83.  94. 

102.  104.  106,  107.  293 

and  Fawell  ii.  62.  75 


Page 
204.  210 

ii.  304,  n. 

ii.  278 

85 

ii.  157 

245.  420 

233 

102.  125 

247  ;  ii.  51 

192 

460 

ii.  56 

198,  n. 

;   ii.  263,  n. 

ii.  83 

428 

ii.  376 

ii.  128 

48 

223 

159.  166 

345.  455. 

506  ;  ii.  25 

ii.  84 

666 

ii.  169 

ii.  304 

267.  269 

ii.  70 

74,  n. 

266 

245,  246 

ii.  61,  62 

74 

87 

423 

249.  287 

136,  137 

52 

339 

34.  316 

262 

258 

ii.  9 


Page 
Hegan  v.  Johnson  249 

Heisier  and  Clarke  ii.  170 

Hellier  and  Coryton  158,  n. 

Hemmington  and  Standley        247 
Henderson  v.  Wild  ii.  62,  n. 

Hendon  (Lord  of  the  Manor 

of)  and   Rex  460 

and  Waller  104 

Henkle  v.  the  R.  E.  A.  Office, 

158,  167 
Hensley  and  East  India  Com- 
pany 46 
Herbert,  ex  parte  ii.  288 
Herbert's  (Sir  Wm.)  case  548 
Hercy  v.  Ballard  394 
Heriott's  Hospital  (Feoffees  of) 

v.  Gibson  37.   92 

Heme  v.  Meers  263 

and  Sloman  ii.   299 

Heron  and  Dickenson  438  ;  ii.  6. 

20  28 
Heron  v.  Heron  ii.   149 

and  Norton  53 

Hertford  (Marquis  of)   v.  Boore 

437 

(Marquis  of)    and  Lord 

William  Gordon  139 

Hervey  v.  Hervey  ii.  377 

Hesse  v.  Stevenson  162  ;  ii.  88.  98 

ii.  39 

146,  147 

181 

182 

192.  370; 

ii.  20.  57 

287 

547 

274 

,  266,  267 


Hewen  and  Dolton 
Hewer  and  Glaister      ii 
Heygate  and  Hulme 
Heylyn  v.  Heylyn 
Hibhard  and  Smith  172. 

Hibbert  v.  Shee 
Hickford  v.  Machin 
Hickman  and  Hopcraft 
and  Peterson        ii 


and  Earl  of  Plymouth  ii  149 

Hicks  V.  Hankin  46 

V.  Morant  8 

(Sir  Harry)  v.  Phillips     257. 

298 
Hide  (Serj.)  and  Dr.  Coldcot  161  ; 

ii.  102 

Hiern  v.  Mill  ii.  291 

Higginson  v.  Clowes     32,  33.  38. 

91.  109.  134.  136.  140.  205. 

230.  318 

and  Fielder  ii.  28 


INDEX    TO    CASES. 


Page 

Iliggins  V.  the  York  Buildings 

Company  643 

Hilbeit  and  Wallinger       223.  295 
Hilder  and  Doe  492.  608 

Hiles  and  Jenkins  218.  430 

Hill  V.  Adams  517 

and  Barker  172 

V.  Buckley       206,  207.  319, 

320.  323 

V.  Carr  194 

and  Coldcott       161  ;   ii.  102 

V.  Bishop  of  Exeter    ii.  167. 

160.  168 

and  Hammond  ii.  87 

Hill  and  Holland  348 

and  Lewes  ii-  162 

and  Nott  264.274 

V.  Simpson  ii.  63 

V.  Worsley  ii-  281 

Hillary  v.  Waller    338.  350.  470  ; 

ii.  374 
Hilliard  v.  Gambel  267 

Hilton  V.  Barrow  230 

Hincksman  v.  Smith  267 

Hinde  v.  Whitehouse     90.  92,  93, 
94.  105.  109 
Hine  v.  Dodd  ii.  222.  280 

Hinton  v.  Hinton  196 

Hitchens  v.  I;ander  561 

Hithcock  V.  Sedgwick  511  ;  ii.  259. 
286.  289,  290 

V.  Giddings  264.  660 

Hitchcox  and  Underwood  269 

Hoare  v.  Parker  ii.  304 

Hobbs  and  Walton  ii.  301 

Hobhouse  v.  Hamilton  ii.  208 

and  Spratt  ii.  188.  190 

Hobbs  V.  Norton  ii.  262 

Hobson  and  Rist  87 

Hoby  V.  Roebuck  81 

Hockin  V.  Cooke  325 

Hodder  v.  Ruffin  71 

Hodding  and  Edwards  47 

Hodges  and  Goodright,  or 

Langtielde  ii.   139 

Hodges  V.  Horsfall  162 

V.  Jones  66 

V.  Templar  ii.  195 

Hodgson  V.  Been  ii.  286 

Hodgson  and  Le  Bret  102 

Hodson  and  Kendray  53 

Hogg  and  Doe  ii.  208 


Page 

Hogg  V.  Snaith  133 

Hoggart  and  Harrington  ii.  14.  16 

V.  Scott  436 

and  Waring  34.  36 

Holbech  and  Bree  654.  664 

Holdstvorth  V.  Holdsivortli      ii.  70 


Holford  and  Barker 

V.  Lade 

Holland  v.  Eyre 

V.  Hill 

and  Rex 


Hollier  and  Rex 
Hollings  and  Matthews 
Hollins  and  Harrison 
Hollis  V.  Edwards 


60 
470 

89 
348 
ii.  106 
516 
564 
397 


74,  n.  77,  n. 
214 

V.  Whiting  or  Edwards     114 

Holman,  ex  parte  360.  609 

Holme  and  Cragg  203 

Holmes  v.  Ailsbie  632 

V.  Blogg  ii.  107 

V.   Coghill  ii.  377 

V.  Custance      ii.  263,  n.  297 

and  Hawkins  102.  126 

and  Poultney  81 

Holt  V.  Holt  625 

Hoi  wood  V.  Bailey  ii.  27 

Homfray  and  Guest  289.  426.  437 
Hone  and  Davis  203,  204 

Honeycomb  v.  Waldron        ii.  211 
Hooker  and  Tildes  219.  333.  345. 

347 
Hooper,  ex  parte 

V.  Eyles 

Hooper  v.  Goodwin 
V.  Ramsbottoni 


Hopcraft  v.  Hickman 
Hope  V.  Atkins 
V.  Booth 


Hopkins  and  Bond 

and  Craig 

and  Doe 

V.  Graysbrook 


123 

ii.  137 

70 

ii.  76 

274 

133 

216 

397 

568,  n. 

ii.  160 

236.  237 


Hopkynsand  Howard  6.  205.  216 
Hopson  V.  Trevor 
Hopton  and  Jennings 
Horde  and  Taylor 
Horford  v.  Wilson 
Home  and  Barrington 
and  Moyl 


Horn  and  Carter 
v.  Horn 


33. 


215 
223 
393 
54 
198 
119 
130 
327 


INDEX    TO    CASES. 


Page 

Horn  and  Jelliff  ii.  185 

Horndon  (Inhabitants  of)  and 

Rex  79 

Horner  and  Cadman  202.  261 

and  Mayor  of  Hull       ii.  374 

Horniblow  v.  Shirley         289.  346 
Horsfall  and  Hodges  152 

and  Waller  242 

Hort  and  Giffard  58  ;  ii.  273 

Horton  and  Milner  ii.  99,  100 

and  Nannock  ii.  375 

Horwood  and  Underbill  262 

Hosier  v.  Read  141 

Hoskins  and  Trenchard       ii.    101 
Hovenden  v.  Lord  Annesley, 
394,  395 
Houghton,  ex  parte  ii 

V.  Rushley  ii 

How  and  Nicholls 

V.  Stiles 

V.  Weldon 

Howard  and  Bell 

V.  Braithwaite 

Howard  v.  Castle 

and  Davys 

V  Ducano 

V.  Hopkins  6. 

and  Wright 

Howe  V.  Howe 

Howell  V.  George      199. 

V.  Richards 

Howes  V.  Brushlield 


Rex 
Hunt  V.  Bourne 

V.  Coles 

V.  Danvers 


397 
ii.  135 
ii.  198 

618 

464 

ii.  260 

148.  428 

104 
24.  26 

152 


II. 

ii. 

205. 

ii. 

i04. 


119 
216 
429 
135 
210 
ii.  95.  97 
ii.  88 


XXXIX 

Page 

Hungerford  (Sir  Edwardj  and 

Blake  ii.  259 

V.  Earle  ii.  179 

and  Mildmay  309 

Market  Company  and 

256 
388 
601.  543 
ii.  84 
287 
ii.  8 
233 
554 
40,  41 
278,  n. 
188 
ii.  263 
ii.  81.  86 
ii.  11 
278 
5 
ii.  198 
ii.  375 
ii.  139 
ii.  327 
224 
246 
ii.  166 


Howland  v.  Norris  289.  295  ;  ii.  2 
Hoivorth  V.  Poicell  or  Deem  ii.  55. 

293 
Hoy  and  JYoel  208.  221 

Huddleston  v.  Briscoe  88,  89 

Hudson  V.  Bartram  444 

and  Wrightson  ii.  220 

Hugell  and  Grover  ii.  119 

Hughes,  ex  parte  64  ;  ii.  110.  123, 

124.  266 

V.  Bennett  ii.  101 

V.  Garth  ii.  305 

V.  Kearney  ii.  13.  64 

and  Rane  99.  141 

V.  Robotham  463 

Hulme  V.  Heygate  181 

Hull  (Mayor  of)  v.  Horner  ii.  374 
Humble  v.  Bill  ii.  33.  55 

and  Savage  ii.  52 

Hungate  v.  Hungate  ii.  135 


Himt  and  Mattock 
Hunt  and  Macknell 

V.  Silk 

Hunt  and  Simmons 
Hunter,  ex  parte 

V.  Wilsons 

Huntingford  and  Woods 
Huntley  and  Jacques 
Hurd  and  Fletcher 
Husskisson  and  Monk 
Hussey  v.  Revel 
Hutchinson  v.  Bell 

V.  Johnson 

and  Moulton 

and  Rastel 

Hutton  V.  Lewis 
Hyde  V.  Wroughton 
Hylliard,  ex  parte 
Hylton  and  Ramsden 

I. 


114; 


Ibbotson  V.  Rhodes        10;  ii.  301 
Iggulden  V.  May  157 
Inchiquin  (Earl  of)  and  Coun- 
tess of  Shelburn        156,  159. 
167,  168 
Inge  V.  Lippingwell                      146 
Ingledew  and  Harris      ii.  307,  308 
Innes  v.  Breaksbear               ii.  257 
luskip  and  Lord  Braybroke    351  ; 
ii.  51.  262 
Ireland  and  Churchman 
Ireson  v.  Denn 
V.  Pearman 


Irnham  (Lord)  v.  Child 

Irons  V.  Kidwell 
Iseham  v.  Morrice 
Isherwood  and  Gartside 
Ithel  V.  Potter 

V.  Beane 

Iveson  and  Eyre 


182 
ii.  221 

652 

159.  166, 

167.  210 

ii.  223 

454 

262 

102 

ii.  53 

110 


xl 


INDEX    TO    CASES. 


Page 


ii.  269 

168 

96.    113.  115. 

275 

249 

652 

Lever,  260.281,  282.  285 

Petire  250 

and  Rich  143.  145.  167 

V.  Rowe  (2  Sim.  &  Stu.  472.) 

ii.  308 
V.  Rowe   (4  Russ.  514.) 


Jackson's  case 
Jackson  v.  Cator 
and    Cooth, 

and  Doe 

V.  Green 

V. 


Jenkinson  and  Hall 

V.  Pepys 

V.  Watts 

Jenner  v.  Tracey 
Jennings  v.  Hopton 

V.  Moore 

V.  Selleck 


—  and  Smith 

and  Saunderson 


93. 


Jackson  and  Tenant 
Jacob  and  Rowntree 

and  Worrall 

Jaffray  and  Card 
Jakeman  and  Shaw 


n.  304 

226 

100,  101 

ii.  32,  n. 

ii.  62,  n. 

ii.  168 

90 

164.  242 


James,  ex  parte,  ii.  116.  119.  123,   Jeyes  and  Gibson 


—  and  Doe 

and  liearne 

V.  James 

V.  Morgan 

and  Sir  Samuel  Romilly   342 


124.  126.  266 
ii.  157 

87 

ii.  330.  333 

267 


Page 

226 

32.  136 

176.  178,  n. 

395 

223 

ii.  279 

ii.  260 

Jerdon  v.  Foster  191 

Jernegan  and  Willis  262 

Jerningham  and  Crutchley         226 
Jerrard  v.  Saunders     ii.  259,  260. 
307.  309 
Jerritt  v.  Weare  ii.  84 

Jervies  and  Peeles  ii.  95 

Jervis  and  Jason  ii.  162 

Jervoise  v.  Clarke  56 

V.  Duke  of  Northumber- 

340 

390,  391 

218 

233 

359 

530 

ii.  121 

68 

249 

ii.  198 


land 
Jesson  and  Doe 
Jeudwine  v.  Alcock 

V.  Slade 

Jevon  and  Noel 
Jewell  and  Boughton 


V.  Shore 


Janaway,  ex  parte 
Janssen  and  Chesterfield 
Jaques  v.  Huntley 
Jarmain  v.  Egelstone 
Jason  V.  Jervis 
Jeanes  v.  Wilkins 
Jebb  V.  Abbot 
Jee  and  Cripps 
Jeffery  and  Spratt 

and  Warde        427. 

Jeffrey  and  Vawser 
Jeffries  and  Cheek 

and  Montague 

V.  Small 

Jelliff  V.  Horn 
Jenkins  and  Collier 

V.  Hiles 

Key  mis      194  ;  ii. 

V.  Reynolds 

and  Wood  house 


Johnes  and  Lloyd 
Johnson  and  Hegan 
and  Hutchinson 


n. 


293 
192 
265 
263 
239 
ii.  162 
li.  203 
ii.  34 
ii.  138 
335,  336 
434.  443 
183 
ii.  329 
186 
ii.  128 
ii.  186 
189.  299 
218.  430 
162,  163. 
179 
86 
ii.  89 


V.  Johnson 

Johnson  v.  Kennet 
Johnson  v.  Legard 
Johnson  v.  Mason 
Johnson  v.  Nott 

and  Proctor 

and  Sewell. 

and  Stansfield 

V.  Telford 

JoUand  v.  Stainbridge 

222 


243.  294.  654 

ii.  39 

ii.  166.  175 

451 

ii.  103 

ii.  92 

71 

106.  109 

182 

650  ;  ii. 

277.  301 


Jolliffeand  Mertins  ii.  274. 293. 302 


Jones  V.  Barkley 
and  Brown 

—  V.  Bowden 

—  V.  Croucher 


246 

ii.  161.  167 

316 

ii.  168 

and  Davies  200 

and  Doe  389 

Jones  V.  Dyke  46.  235.  238 ;  A  pp. 

No.  8 
Jones  V.  Edney       31.  34.  47.  134 
and  Egerton  219 

and  Goodright  397 

and  Goodtitle    394,  470.  486 
V.  Groobham  ii.  168 


INDEX    TO    CASES. 


Xli 


Page 

Jones  and  Hatton  ii.  157 

and  Hodges  66 

and   King  ii.  78 

V.  Marsh  ii.  166 

and  Matthews   ii.  31,  n.  297 

and  Moggiidge  246 

Jones  and  JMorpheU  116 

Jones  V.  Mudd  ii.  10 

V.  Nanney  22.  45 

V.  Newman  152 

V.  Price  426 

V.  Reilly  216 

V.  Ryde  664 

V.  SherifFe  168 

V.  Stanley  ii.  274 

— —  V.  Thomas  ii.  307 

Jordan  and  Barnfather  ii.  107 

V.  Savage  359.  362 

V.  Sawkins  145 

Jordan  and  Shenton  215 

Jourdon  and  A  lam  ii.  300 

Joynes  v.  Statham  137 

Jukes  and  Maidment  329,  n. 

Julian  and  Rayner  229 

K. 

Kain  and  Shepherd  316 
Kancy  and  Watts,  or  Mutts    ii.  52 

Kaye  and  Tolson  390 

Kaye  v.  Waghorn  146 

Keane  v.  Roberts  ii.  54 
Kearney  and  Hughes        ii.  13.  64 

Keeble  and  Wildigos  ii.  243 

Keechv.  Hall  332,  ii.  155 

V.  Sandford  ii.  114 

Keene  and  Awbry  654 

V.  Stukely  257 

Keen  v.  Deardon      350.  394.  487 

Kellick  V.  Flexny  ii.  109 

Kelly  V.  Powlet  154 

Kelsall  V.  Bennett  ii.  306 

Kelty  and  Broivn  227,  228 

Kemeys  and  Denn  465 

Kemp  and  Hawkins  247  ;   ii.  51 

and  Robson  ii.  299 

Kempson  and  Jlspinall  508 

Kemys  v.  Proctor  106 

Kendall  and  Beckett  231.  265 

Kendar  v.  Milward  ii.  149 

Kendray  v.  Hodgson  53 

Kennedy  and  Burden  541  ;  ii.  203 

VOL.    I.  F 


Page 

Kennedy  v.  Daly    58.  617,  n. 

639  ;  ii.  273 

V.  Lee  95 

Kennet  and  Johnson  ii.  39 

Kenney  v.   Wrenham    216.   284  ; 

ii.  9 
Kenny  v.  Browne  ii.  267.  295 
Kenn  v.   Corbett  355 

Kent  and  Bond  ii.  60 

and  Dunch  ii.  32 

and  W  irdman  300 

Kenworthy  v.  Schofield       93,  94. 

106.  109 
Kenyon  (Lord)  and  Myddleton 

ii.  168 

V.  Sutton  178 

Ker  V.  Clobery  250.  295.  297 

Kerrison  v.  Dorrien  ii.  161 

Kett  and  Back  182 

Ketsey's  case  ii.  107 

Keymis  and  Jenkins  194  ;  ii.  162, 

163.  179 
Keys  and  Vernon  6 

Kidby  and  Luther    ^  178 

Kidd  and  Roake  340.  355 

Kidder  and  Rider  ii.  135.  139 

Kidwell  and  Irons  ii.  223 

Kilvington  and  Barstow  164 

Kine  V.  Balfe  116 

King  (The)     See  Rex. 

V.  'Brewer  ii.  168 

and  Cotton  ii.  161 

V.  Denison  ii.  143 

and  Dawes  3 

V.  Jones  ii.  78 

V.  King  241 

and  Noble  ii.  92 

and  Smith  394.  511 

V.  Turner  192.  349 

V.  Wightman  290 

Kingdome  v.  Boakes  ii.  300 

V.  Bridges  ii.  147 

and  Hayes  ii.  1 20 

Kingdon  v.  Nottle  ii.  78 

Kingscote  and  Elmore  90 

Kingsley  v.  Young  342 

Kingston  (Duchess  of)  and 

Meadows  ii.  307 
Kinnaird  v.  I^ord  Dean  3.  5,  n. 
Kinsman  v.  Kinsman  ii.  281.  284 
Kirkv.  Clark  ii.  170 
V.  Webb                 ii.  137.149 


xTii 


INDEX    TO    CASES. 


Page 

Kirkham  v.  Smith  194 

Kirtland  v.  Pounsett  11.  239.  249 
Kirton  and  Wren  30.  62  ;  ii.  115 
Kitchin  v.  Bartch  157 

Klinitz  V.  Surry  49 

Knatchbull  v.  Grueber  203 

Knight  V.  Crockford    88.  100.  248 


Ellis 


Knight  and  JMorris 
Knipe  and  Aveling 
Knollys  v.  Alcock 
V.  Shepherd 


ii.  355,  n. 

246,  n. 

ii.  127 

184,   185 

186 


Knott,  ex  parte   469.  520 ;  ii.  259. 

286,  287.  290 

Knowel  and  Harcourt  ii.  260 

Knubley  and  Wilson  ii.  1.04 


Lacey,  ex  parte    ii.  109.  122,  123 
Lacon  v.  Mertins    115,  116.  121. 
189  ;  ii.  10.  57 
Lacy  and  Sowarsby  ii.  34 

Lade  v.  Hol%d  470 

V.  Lade  ii.  135 

Laindon  (Inhabitants  of)  and 

Rex.  132 

Laing  and  Hagedon  422 

Lake  V.  Craddock  ii.  129 

Lake  v.  Gibson  ii.  128 

and  Wood  79.  81 

Lamas  v.  Baily  ii.  132,  133 

Lamb  and  Rex  516 

Lambe  and  Williams  ii.  309 

Lambers  v.  Bainton  ii.  113 

Lambert  and  Greene  521 

Lamplugh  v.  Lamplugh       ii.  141, 
142,  143 
Lampon  v.  Corpe  ii.  62,  n. 

Lander  and  Hitchins  561 

Lane  v.  Dighton  ii.  149 

V.  Goudge  158,  n. 

and  Lowndes  295.  307 

Lang  V.  Gale  419 

Langfield  v.  Hodges  ii.  139 

Langford  v.  Pitt        179,  180.  430 

and  Prestage         ii.  1 13.  1 17 

Langham  v.  Nenny  ii.  374 

and  Prodgers       ii.  169,  170 

Langlands  and  Blacket  ii.  303 
Langley  v.  Brown  ii.  374 
and  Miles                      ii.  292 


Langley  v.  Lord  Oxford 

Langstaffe  and   Scott 
Langstroth  v.  Toulmin 
Langton  and  North 

V.  Tracey 

Lansdown  v.  Elderton 
V.  Lansdown 


Latham,  ex  parte 
Latouche  v.  Lord  Dunsany 

ii.  220,  n 
Laude  and  Lawson 
Laughton  and  Clifford 
Lautour,  ex  parte 
Lavender  v.  Blackstone 


Page 

ii.  32,  n. 

56 

211 

46 

521 

ii.   169 

60 

254 

260 


and  Spittle 
V.  Stanton 


Lawder  and  Doe 
Lawes  v.  Bennett 
Lawrence  and  Whichcote 


Lawrenson  v.  Butler 
Lawson  v.  Laude 
Layer  and  Cotter 
Lea  V.  Barber 

and  Doe 

and  Osborn 


Leadbeater  and  Dobson 
Leak  v.  Morrice 
Leakins  v.  Clissel 
Leatt  and  Stabback 
Le  Bret  and  Hodgson 
Le  Breton  and  Hargrave 
Lechmere  v.  Braser 
Lechmere  v.  Earl  of  Carlisle 

ii.  151,  162,  153 


222 

135 

323 

ii.  259 

ii.  167. 

179 

53 

ii.  34 

249 

187 

ii.  109. 

115.  126 

207,  n.  305 

135 

183,  184 

84 

135 

ii.  263 

ii.  305 

114.  120 

3 

358 

102 

ii.  278 

64.  434 


Lechmere  v.  Lechmere 


Lee 


-  (Lord)  and  Lewis 
267, 

■  V.  Speldt 
V.  Arnold 
•  and  Cotton 

and  Kennedy 

■  V.  Markhani 

■  V.  Munn 
and  Oxley 


Lee  and  Slanltij 
Lee  and  Tapp 
and  Walwyn 


A  pp. 

No.  24 

216 

428.  443 

ii.  264 

ii.  77,  n. 

85 

95 

ii.  298 

239  ;  ii.  14 

ii.  173 

ii.  355,  n. 

5  ;  ii.  263,  n. 

ii.  260.  303. 

304 


INDEX    TO    CASES. 


xliii 


Leach  v.  Ueuu 
Leech  v.  Leech 
Lees  V.  Burrows 

V.  Nuttall 

Lefebury  and  Winged 


Lefroy  v.  Lefroy 
Legal  V.  Miller 
Legard  v.  Johnson 
Legate  v.  Sewell 
Legeyt  and  Church 
Legge  V.  Croker 
Leicester's  (Earl  of)  case    ii 
Leigh  (Lord)  and  Forrester 

ii. 

and  Lutkins 

and  Oswald 

V.  Winter 


Page 

.  171,  172 

ii.    159 

54 

46 

172.  213; 

ii.  269 

67.  70 

148.  150 

,  166.  175 

194 

233 

307 

377 


Leigh  and  Smith 
Leighton  and  Carleton 

and  Ovey 

Leman  and  Dillon 

ex  parte 

V.  Whitly 


131 

ii.  70 

ii.  374 

ii.  179 

ii.  27 

ii.  264 

ii.  307 

390 

ii.  259 

ii.  138 

Lench  v.  Lench  ii.  135.  137,  138. 

149 
Lenham  v.  May  665 

Le  Neve  and  Norris     ii.  126.  278 

V.  Le  Neve  ii.  222,  223.  278. 

382 
Lennon  v.  Napper  203.  423 

Leonard  v.  Leonard  254 

Lesley's  case  ii.  114 

Lever  (Sir  Darcy)  v.  Andrews 

ii.  135 

and  Jackson   260.  281,  282. 

285 

and  Page 

Levy  v.  Haw 
V.  Lindo 


Lewes  v.  Fielding 

v.  Hill 

Lewin  v.  Guest     293. 
Lewis,  ex  parte 

and  Baxter 

V.  Campbell 

and  Campbell 

and  Hutton 


ii.  305 

233 

443 

ii.  308 

ii.  152 

448 ;  ii.  26 

ii.  110,  n. 

247 

ii.  77 

ib. 

ii.  327 


V.  Lord  Lechmere  216.  257. 

428.  443 

V.  Loxham  ii.  24 

V.  Madocks  ii.  150 


Lichden  v.  Winsmore 
Lifford  and  Swannock 
Lightbody  and  Goodwin 
and  Lubin 


Lightburne  v.  Swift 
Lill  v.  Robinson 

and  Stadt 

Lilly  v.  Osborne 
Lincoln  and  Darwin 
Lindo  and  Levy 
Lindsay  v.  Lynch 
v.  Talbot 


Pago 

460 

517.  519 

171.  432 

223 

58 

ii.  27 

85 

ii.  146 

329.  333 

443 

91.  117.  126 

ii.  298 


11. 


II. 


Lingood  and  Sir  J.  Barnar- 

diston 
Linwood,  ex  parte 
Lippingwell  and  Inge 
Lister  and  Dale 

and  Foxcraft 

Lister  and  Goodxoin 
Lister  v.  Lister 

and  Sikes 

Littler  and  Clynn 

Liversidge  and  Bellamy 

Livins  and  Shelton 

LlandafFand  Ellard  203,  204.  210 

Llewellyn  v.  Mackworth   394.  397 

and  Williams  ii.  112 


264 

110 

146 

302 

116 

192 

ii.  123 

172.  192 

184 

370 

32 


Lloyd,  ex  parte  ii.  265 

v.  Baldwin  ii.  32.  34 

V.  CoUett         424.  426.  435. 

443 ;  ii.  20 

v.  Crispe  339 

v.  Griffith  63.  536 

V.  Johnes  68 

V.  Read.     See  Lloyd. 

and  Smith  49.  226,  227.  296 

V.  Spillett  ii.  135,  136 

V.  Tomkies  ii.  83 

Loaring,  ex  parte  ii.  64 

Lock  and  Burrowes  6,  7.  12.  259  ; 

ii.  263 
Lockey  v.  Lockey  116 

Lockley  and  Attorney-General 

App.  No.  18 


Lockycr  and  Dickenson 
Lodge  and  Buck 
v.  Lysely 


Loggon  and  Pickett 
Lomax  and  Hayward 
Londen  and  Vizod 
London  (City  of)  and  Dias 
(City  of)  V.  Richmond 


ii.  52 
227 
545 
263 
566 
362 
30 
257 


xliv 


INDEX    TO    CASKS. 


London  {City  of)  v.  Smilli 
Treasurer  of  the  W.  I. 

n.  a 

London  and  Tendring 
Long  V.  Collier  355 

Longchamps  v.  Fawcett 
Longdale  and  Vizard 
Lopus  and  Chandelor 
Lord  V.  Lord 
Loveday  and  Abdy 
Loveland  and  Waburton 


PaiTc 


11. 


Loveridge  v.  Cooper 
Low  V.  Barchard 
and  Charlton 

and  Smith 

Lowe  V.  Lush 

V.  Manners 

and  Roe 

V.  Swift 

Lower  and  Weal 
Lowes  and  Green 
Lowndes  v.  Bray 
V.  Lane 


134 

207 

ii.  27 

152 

362 

3 

73 

ii.  261 

ii.  158. 

212 

ii.  265 

262 

618.  628  ; 

ii.  259 

ii.  290 

172.  343 

223 

195 

130 

194 

ii.  31,  n. 

248.  342 

295.  307 

ii.  299 


Lowten  and  Parkhurst 
Lowther  (Sir  James)  v.  Lady 

Andover  438  ;  ii.  1. 

V.  Carrill  102 

Lotvtherv.  Carletonil  260.274.280 
Lowther  (Lord)  and  Gaskarth 

88.  190  ;   ii.  21 

V.  Lowther  269  ; 

Loyd  V.  Read 
Loyes  v.  Rutherford 
Loxham  and  Lewis 
Lubin  V.  Lightbody 
Luellyn  and  Evans 
Luffkin  and  Doe 
Lvffkin  D.  JS'unn 
Lukey  v.  O'Donnell 
Lumley  and  Belmanno 

V.  Reisbeck 

Lush  and  Lowe 

V.  Wilkinson 

Luther  v.  Kid  by 
Lutkins  V.  Leigh 
Lutwych  V.  Winford 
Luxton  V.  Robinson 
Lyddall  v.  Weston 
Lynch  and  Burnett 
and   Lindsay    91 


ii.  53. 

109 

ii.  143. 

147 

309 

ii.  24 

223 

262 

ii.  270. 

292 

ii. 

271 

260 

222 

252 

173. 

343 

ii. 

147 

178 

i 

1.  70 

57 

240 

351. 

354 

39 

.  117. 

126 

Page 

Lynes  and  Doe  298,  n. 

Lyon  and  Eaton  157 

Lysely  and  Lodge  545 

Lysney  v.  Selby  4,  5,  332.  560 
Lyster  v.  Dolland,  541  ;  ii.  129 
Lytton  V.  Lytton  396 

M. 

Maberly  v.  Robins  243 

Macartney  v.  Blackwood  ii.  19 
Macclesfield  (Earl  of)  v.  Blake  70 
M'Culloch  V.  Cotbach  70 

Macdonald  v.  Hanson  367 

Macdowgall  and  Robertson  ii.  278 
Macghee  v.  Morgan  262 

Machin  and  Hickford  547 

Macfarlan  and  Moses  234 

Mackenzie  and  York  Buildings 

Company   ii.    109,   110.   115. 

122,  123    126 

Mackintosh  v.  Townsend  ii.  130,  n. 

Mackrell  v.  Hunt  ii.  8 

Machreth  and  Fox        ii.  109.  124 

V.  Marlar  438 

V.  Symmons  ii.    57,  58.  61. 

65,  66.  74.  76 

and  Waring  332 

Mackrill  and  Cordwell  ii.  297 

Mackworth  and  Llewellyn 

394.  397 
Maclachlan  and  Templer  552 
Maclean  v.  Dunn  108 
JWLeaij  and  Edwards  565 
Macleod  and  Drummond  ii.  54 
MacMew  and  Jlgar  276 
Macklew  and  Causton  548 
JMacmahon  and  Gennor  168 
Macnamara  v.  Arthur  248 
and  Rigby  (6  Yes.  jun. 

117)  70 
and  Rigby  {-6  Yes.  jun. 

466)  ib. 
and  Rigby  (6  Yes.  jun. 

515)  57 

V.  Williams  230 

Mac  Neil  and  Morris  250 

Mac  Queen  v.  Farquhar  294.  353  ; 
ii.  20.  25.  295 
Maddeford  v.  Austwick  261 

Maddin  and  Pelly  ii.  136 

Maddison  v.  Andrews  ii.  139 


INDEX    TO    CASES. 


xlv 


Page 

Maddox  v.  Maddox      ii. 

278. 

298 

and  Orrell 

397 

Madocks  and  Lewis 

ii. 

160 

Magdalen  College  case 

ii. 

158 

Margrane  v.  Archbold 

205. 

215 

Maguire  v.  Armstrong 

ii. 

272 

Maidment  v.  Jukes 

32 

9,  n. 

Main  v.  Melbourn      49. 

121. 

428 

Maitland  and  Farguson 

263 

V.  Wilson 

ii. 

30^ 

Maiden  and  Menill 

ii. 

262 

Mallom  V.  Bringloe 

ii. 

108 

Malpas  V.  Ackland 

ii. 

293 

Maltby  and  Meux 

ii. 

291 

Mammon  and  Coote 

ii. 

279, 

Man  and  Drury 

450 

Manners  and  Lowe 

223 

Manning,  ex  parte 

ii. 

4.  8 

and  Baylis 

329,  n. 

and  Doe 

ii. 

160 

Mansell  v.  Mansell 

ii. 

269 

M^ansell  v.  Price 

153 

Mansfield's  case 

359 

Mapes  and  Foster 

ii.  83 

Marbury  and  Tarback 

ii. 

179 

Margravine  of  Anspach 

V. 

Noel 

224 

Mark  v.  Willington 

180 

Markant  and  Halcot 

ii. 

149 

Markham  and  Lee 

ii. 

298 

Marlar  and  Mackreth 

438 

Marlborough    (Duchess 

of) 

and  Brace   479.  647  ;  ii. 

307 

(Duke    of)    V.    Lord 

Godolphin 

ii.  81 

Marlow  V.  Smith 

340. 

348 

Marriot  and  Spencer 

ii.  85 

Marsh,  e(c  parte             ii. 

111 

112 

and  Brett 

666 

and  Jones 

ii. 

166 

and  Wade 

263,  n. 

Marshall  v.  Frank 

ii. 

303 

and  Nind 

ii.  96 

Marsham  and  Griswold  542;  ii.  286 
Martin  and  Betting  79 

and  Burrough  10 

and  Doe  8;  ii.  179 

V.  Mitchell  85.  197.  200.  203 

V.  Smith  240.  247 

and  Style,  or  Styles     ii.  281, 

282 
and  Watts  69 


Page 

Martinez  v.  Cooper  468 

Martyn  and  Blakeston  648 

Martyr  and  Doe            ii.  160.  169 

and  Powell  ii.  2.  25 

Marwood  and  Small  ii.  50 

V.  Turner  379 

Mayre  and  Darkin  61 

Maryon  V.  Carter  422 

Mascall  and  Norton  213 
Mason  v.  Armitage  105.  109.  206 

V.  Corder          299.  304.  339 

and  Johnson  451 


Massey  and  Dawson     ii.  116.  300 

and  Roberts  50,51; 

ii.  2 

Mathers  and  Pember    33.39.160. 

169.  251  ;  ii.  301 

Matthews  v.  Dana  223 

andEgerton  85 

V.  Hollings  654 

V.  Jones  ii.  31,  n.  297 

and  Moss  40.  51.  222 

and  Stubbs  67 

V.  Wallwyn  ii.  221 

Mattock  V.  Hunt  287 

Maund  and  Watkins  ii.  189 

Maunde  and  Walter  9.  344 

Maundrell  v  Maundrell     491.  618 
Maunsfield's  case  369 

May  and  Iggulden  157 

and  Lenhani  665 

and  Newman  232 

Mayfield  v.  Wadsley  83,  84 

Mayor  v.  Gowland  184 

Mayer  and  Wright  ii.  299 

Mayhew  and  Bennet  ii.  149 

Mayhow  and  Mooe      ii.  274.  305, 

306 
Maynard's  (Serj.)  case  653,  664 
Mayoss  and  Spurrier  ii.  19 

Mead  and  O'Neal  ii.  70 

V.  Lord  Orrery         ii.  63.  65 

Meadows  v.  Duchess  of  King- 
ston ii.  307* 
V.  Tanner  29 


Meal  and  Seagood       90.  95.  121. 

124 
Mease  v.  Mease  133 

Meder  v.  Birt  ii.  307 

Medlicott  v.  O'Donel      265.  396  ; 

ii.  126 
and  Toole  116 


xlvi 


INDEX    TO    CASES. 


Page 

Meers  and  Heme  263 
(Sir  Thomas)  and  Lord 

Stourton  433,  n. 
(Sir  Thomas)   v.   Lord 

Stourton  433 

Melbourn  and  Main    49.  121.  428 

Meller  and  Paine     278,  279.  282. 

329.  427.  434 

MelHsh  V.  Mellish  158,  n. 

V.  Motteux  313 

Melsington  (Lord)  and  Rosa 

mond 
Mendham  and  Boswell 
Menill  and  Maiden 
Merceau  and  Preston 
Meredith  and  Goodtitle 
and  Woodhouse 


166 
353 
ii.  262 
133 
181 
ii.  109 
133 
276 
ii.  279 
ii.  32.    38, 
39.  52.  66 
Mertens  v.  Adcock  40 

Mertins  v.  JoHffe  ii.  274.  293.  302 

and  Lacon  115,    116.   121. 

189 
Mesnard  v.  Aldridse 


Meres  v.  Ansell 
Merest  and  Morse 
Merry  v.  Abney 
Merryman  and   Elliott 


Metcalf  V.  Clough 

V.  Scholey 

Metcalfe  v.  Pulvertoft 

Meux  V.  Maltby 
Meynell  v.  Garraway 
Michaux  v.  Grove 
Micklem  and  Doe 
Middlemore  v.  Goodale 
Middleton  and  Crosby 

V.  Hallett 

V.  Spicer 

JVliddleton  {Lord)  v 
Middleton  v.  Eyre 

Lord  and  Pullen 

JVlidgeley  and  Bradshaiv 
Mighell  and  Gregory 
Milbanke  and  George  ■ 

Mildmay  v.  Hungerford 

V.  Mildmay 

Miles  V.  Langley 
and  Thomson 

Mill  and  Hiern 


u.  10.  57 

33 

47 

641 

ii.  173. 

178.  283 

ii  291 

ii.  274 

ii.  108 

158,  n. 

ii.  77 

168 

ii.  103 

173 

Wilson       91 

91,  n. 

195 

ii.  20 

116.  275 

ii.  169. 

265 

309 

ii.  306 

ii.  292 

240,  241. 

287 

ii.  291 


Pane 

Mill  and  Portman  219.  223.  32°1 
Millard's  case  ii.  260.  306 

Miller  V.  Blandist  118.  131 

and  Legal  148.  150 

and  Rex  157 

Milligan  v.  Cooke  303 

Millington  and  Williams  46 

Mills  V.  Auriol  ii.  104 

and  Milner  174.  180 

Milner  and  Curwyn  264 

V.  Horton  li.  99,  100 

V.  Mills  174.  180 

Milnes  v.  Gery  275 

Milward  and  Kendar  ii.  149 

V.  Earl  Thanet         425.  437 

Minchin  and  Whitcomb  ii.  109 
Minet,  ex  parte  85 

Minor,  ex  parte  60.  278 

Mitchell  and  Buckle     ii.  173,  174, 

175 

V.  Hayne  48 

and  Martin         85.  197.  200. 

203 
Mitchell  V.  Neale  340.  450 

and  Richardson  ii.  303 

Mitford  V.  Mitford  ii.  294 

Mitton  and  Roe  ii.  163.  165.  168 
Moccatta  v.  Murgatroyd  ii.  296 
Moggridge  v.  Jones  246 

Molesworth  v.  Opie  70 

Moleyn's  ( Sir  John  De)  case  647 
Mollett  V.  Brayne  79 

Monck  and  Broome  174.  180. 

189.  191 
Monk  V.  Huskisson  ii.  11 

Monnoux  and  Appowel  ii.  77,  n. 
Montague  and  Sir  Thomas 

Harvey  ii.  283 

V.  Jeffries  185 

Montesquieu  v.  Sandys  ii.  121 

Montford  (Lord)  and  Gibson    174 

(Lord)  V.  Lord  Cadogan 

ii.  266 
Monypeny  v.  Bristow  181 

Moore  v.  Bennett  ii.  293 

V.  Edwards  113 

V.  Foley  157 

and  Frere  ii.  75.  265 

and  Jennings  ii.  279 


Moore  and  Pollexfen     171  ;  ii.  20 

57.  67.  70,  71.  73,  74 

and  Stokes         91.  100.  102 


INDEX    TO    CASES. 


xlvii 


Moore  and  Walker 

and  Ward 

and  Wildwoose 


Page  ] 
236 
179  j 
ii.  243,  244 ! 


Moor  V.  Mayhow  ii.  274.  306,  306 
Morant  and  Hicks 
Morecock  v.  Dickens 
Morgan,  ex  parte       ii. 

and  Baker 

and  Barksdale 

and  Charlwood 

and  Corder 

Morgan  and  Goodtitle 

and  James 

and  M'Ghee 

and  Pearson 

and  Randall 

V.  Shaw 

V.  Tedcastle 

and  Walters 

and  Wynn 

Morison  v.  Turnour 
Morony  v.  O'Dea 
JVIorphelt  v.  Jones 
Morrel  and  Woodman 


8 
ii.  221 
109,  n.  112 
68 
325 
329,  n. 
358 
484.  487. 
,560 
257 
262 
ii.  263 
ii.   132.  166 
223.  226 
326 
113 
430  ;  ii.  26 
101. 103 
266 
116 
ii.  142. 
144 
Morrice  v.  Bishop  of  Durham     68 


and  Iseham 

and  Leake 

Morris  and  Barber 

V.  Barrett 

and  Bowen 

V.  Clarkson 

and  Doe 


454 
114.  120 

255 
ii.  129 
63.  86 

348 
ii.  156 

(See  Norris)  v.  Howland 

JVIorris  v.  Knight  245,  n. 

Morris  and  M'Neil  250 

and  Lord  Portmore  166 

V.  Preston  307 

V.  Stephenson  198 

and  Staines    39.  450  ;    ii.  25 

and    Twining    24.   30.  205. 

261.  298,  299 
Morrison  v.  Arnold  370 

Morse  v.  Merest  276 

V.  Faulkner  ii.  263,  264 

V.  Royal  265  ;  ii.  126 

Morshead  v.  Frederick  72. 

App.  No^  10 

Mortimer   v.    Capper,     260.  280. 

282.  284 

V.  Orchard  116.  126;  ii.  300 


Page 

Mortley  and  Ramsbottom     94.  98 
Mortlock  V.  Buller    64.  104.  201. 

205,  206,  207.  259.  261.  305 
Moses  and  Goodright  ii.  161 

V.  Macfarlan  234 

Moss  V.  Gallimore  252 

V.  Matthews  40.  51.  222 

Mosse  and  Trevannian         ii.  305 
Mostyn  and  Boardman  128 

Moth  V.  Atwood  265 

Motives  and  Simon  49.  105 

Motteux  and  Mellish  313 

Moulton  V.  Hutchinson  ii.  375 

Mountford  v.  Catesby  ii.  82 

V.  Ponten  ii.  184 

V.  Scott  ii.  280 

Moxon  and  Price  69 

Moyle  V.  Home  119 

Moyse  v.  Gyles  ii.  127 

Mudd  and  Jones  ii.  10 

Muggridge  and  Annesley    48,  49  ; 

ii.  28 
Mulgrave  (Lord)  and  Sheffield 

340.  433 

(Lord)  and  Phipps       ii.  355 

MuUins  V.  Townshend  58 

Mumma  v.  Murama  ii.  141.  143, 

144 
Munn  and  Lee  239  ;  ii.  14 

Munns  and  Nervin  ii.  81.  93 

Munt  and  Grant  309 

Murgatroyd  and  Mocatta      ii.  296 
Murless  v.  Franklin  ii.  142 

Murray  and  Ayliffe  ii.  120 

V.  Palmer  263.  266  ;  ii.  126 


Muschamp  and  Earl  of  Ard- 

glasse  264 

JMtiseum  ( Trustees  of  the  Bri- 
tish) and  Duke  of  Bedford  ii.  81, 
App.  No.  22 
Musgrave  v.  Dashwood    196,  197 

and  Saunders  31 

Musgrove  and  Bennet  ii.  172 

Mussell  V.  Cooke  94 

Mutts  V.  Kancie  ii.  62 

Myddleton  v.  Lord  Kenyon  ii.  168 
Mynd  and  Hardwicke       ii.  33.  61 

N. 

Nairn  v.  Prowse  ii.  69,  60.  63.  75. 

162 


xlviii 


INDEX    TO    CASES. 


Page 

Nanney  and  Jones  22.  45 

Nan  nock  v.  Horton  ii.  375 
Napper  v.  Lord  Allington     ii.  103 

and  Lennon  203.  423 

Nash  V.  Ashton  ii.  85 

and  Goring  ii.  164 

V.  Palmer  ii.  83 

and  Shelley  272 

V.  Turner  241,  n. 

Naish  and  Tourville     ii.  265.  275 

Neal  and  Viney  84 

Neale  and  Mitchel  340.  450 

V.  Parkin  320 

Nedham  v.  Beaumont  ii.  157 

Needham  and  Norden  ii.  198,  n. 

Needier  v.  Wright  ii.  267 

Nelson  V.  Aldridge  45 

V.  Nelson  164.  323 

and  Reynolds  216.  233 

and  Smith  64 

Nelthorpe  and  Harding  564,  665 

Nelthrope  v.  Pennyman  73 

Nenny  and  Langham  ii.  374 

Nervin  v.  Munns  ii.  81.  93 

Nettleship  and  Clerk  ii.  167 

Neve  (Le)  and  Norris  ii.  126 

Nevil  and  William  118.  131 

Newall  V.  Smith  ii.  26 

Newbold  V.  Roadknight  183 
Newcombe  and  Trower4.  42.  309 

Newell  V.  Ward  ii.  38 

Newham  and  May  232 

Newland  v. ii.  196 

Nevvland  and  Fairchild  ii.  243 

and  Fairclaim  ii.  242 

Newlyn  and  Pearce  ii.  296 

Newman  and  Day  258 

and  Farr  ii.  54 

and  Jones  152 

V.  Rodgers  429 

and  Thorn  460 

Newnham  and  Finch  ii.  282 
Newport's  (Andrew)  case     ii.  169 

Newstead  v.  Searles     ii.  161.  278 

Newton  and  Baylis  ii.  144 

V.  Preston    ii.  135,  136,  137 

and  Waddy  325 

and  Wheeler  99.  198 

Nicholls  and  Chivall  ii.  222 

and  Hardingham  ii.  306 

V.  How  515 

Nicloson  V.  Wordsworth  218  ;  ii. 

61 


Page 

Nicois  V.  Gould  266,  266 

Nightingale  and  Farrer  233.  287 

Nind  V.  Marshall  ii.  96 

Nisbitt  and  Scott  66,  67 

T^ixon,  ex  parte  62 

Noble  V.  Nurell  326 

V.  King  ii.  92 

JVodder  v.  Riiffin  67 
Noel  and  Anspach  (Margravine 
of) 

V.  Bewley 

JVoel  V.  Hoy 


Noel  V.  Jevon 

V.  Ord 

v.  Weston 

Norcliffe  v.  Worsley 
Norden  v.  Needham 


224 
350 

208.  221 
359 
206 

348.  461 
194 

.  198,  n. 


Norfolk  (Duke  of )  and  Forth, 

540.  546  ;  ii.  203 

■ (Duke  of)  v.  Worthy,  34.  42 

49.  53.  234.  309.  322 
Norman  v.  Foster  ii.  98 

JVorinan  and  Wood  ii.  131 

JVormanby  [Marquis  of)v. 

Duke  of  Devonshire  99.  131. 

212.  213 

Norris  and  Hovvland    289.  295  ; 

ii.  2 

v.  Le  Neve  ii.  126 

and  Schneider 

North  V.  Langton 
Northumberland  (Duke  of) 

and  Jervoise 
Northwick  (Lord)  and  Tait 


Norton  and  Crop 


V.  Herron 
and  Hobs 
v.  Mascall 


278 
100 
521 

340 
70 

208.  210  ;  ii. 

133.  137.  139 

63 

262 

213 


11. 


Norwich  (Bishop  of)  and  Mar- 
quis of  Townshend  506 
Nosworth  and  Seymour         ii.  306 
Nosworthy  and  Basset  ii.  259.  306 


Nott  v.  Hill 

264.  274 

and  Johnson 

ii.  103 

V.  Shirley 

178 

Nottle  and  Kingdon 

ii.  78 

Nouaille  v.  Greenwood 

356 

Nourse  v.  Yarworth 

626 

Noyes  and  Hall            ii. 

109.  126 

Nugent  V.  GifFord 

ii.  63,  64 

Nunn  and  Goodison 

245 

ffimn  and  Luff'kin 

ii.  271 

INDEX     TO    CASES. 


xlix 


Nurton  v.  Nuiton 
Nutt  and  White 
Nuttall  and  Lees 

O. 


Page 

ii.  52 

277 

46 


Oakley  and  Burroughes   225,  226, 

227 
Obeen  and  Hawkins  192 

O'Brien  and  Roche     265  ;  ii.  126 
O'Connor  v.  Spaight  145 

Odea  and  Browne  ii.  266 

O'Dea  and  Morony  266 

O'Dell  V.  Wake  ii.  197 

Odingsale  and  Coward  428 

O'Donel  and  Medlecott  265.  395  ; 

ii.  126 
O'Donnell  and  Lukey  260 

O'Fallon  V.  Dillon  ii.  243 

O 'Flaherty  and  Hartly  548 

Ogbourne  and  Pitcairne     149.  167 
Ogilvie  V.  Foljambe  33.  89,  90.  95. 

103 
Oglander  and  Harmood  394,  395 
O'Gorman  v.  Comyn  ii.  170 

O'Hafa  V.  O'Neil  ii.  135 

O'Herlihy  v.  Hedges  91.  124,  125. 

211 
O'Kenden  and  Gould  263 

Oldfield  V.  Round       26.  307.  313 
Oldin  V.  Saaiborne  ii.  116 

Olive  and  Stephens  ii.  168 

Oliver  V.  Court  ii.  110 

Omerod  v.  Hardman        142.  433  ; 
ii.  33,  n.  42 
O'Neal  V.  Mead  ii.  70 

Oneby  v.  Price  192 

O'Neil  and  O'Hara  ii.  135 

Onions  v.  Tyrer  183 

Only  V.  Walker  ii.  301.  302 

Opie  and  Molesworth  70 

Orchard  and  Mortimer    116.  126  ; 

ii.  300 
Ord  and  Brandling  ii.  274 

V.  Noel  206 

O'Reilly  v.  Thompson  118 

Orford  and  Cholmondleij  ii.  266 
Orlebar  v.  Fletcher  171  ;  ii.  197 
Ormsby  and  Crofton    ii.  170.  269. 

291 
Ormond  (Lord)  v.  Anderson  90 
O'Rourke  v.  Percival  85.  210 

VOL.    I.  G 


Orrell  v.  Maddox  397 

Orrery  (Lord)  and  Mead  ii.  53.  55 
Ortread  v.  Round  199,  200 

Osbaldeston  v.  Askew  353  ;  ii.  28 
Osborne  and  Daly  223 

and  Roll  ii.  77,  n. 

Osborn  v.  Lea  ii.  263 

and  Lilly  ii,  146 

Osbourne  and  Rex  158 
Osgood  V.  Strode  ii.  163.  378 
Osstdston  {Lord)  v.  Deverell  333 
Oswald  V.  Leigh  ii.  374 
Ovey  V.  Leighton  ii.  307 
and  Pritchard             212.  275 


Owen  V.  Davies    87.  200  ;  ii.  2.  9 

V.  Foulks  (6)  Ves.  jun., 

630,  n.  (6)  ii.  110 

V.  Foulks  (9  Ves.  jun.  348.) 

70 

V.  Gooch  49 

V.  Parry  22 

Oxenden  and  Doe  162 

Oxenden  v.  Lord  Exmonih     ii.  1 1 

27 
Oxenham  v.  Esdaile  ii.  57 

Oxford  {Lord)  and  Langley 

ii.  32,  n.  56 
Oxford  (Lord)  v.  Lady  Rodney  188 
Oxley  V.  Lee  ii.  173 

Oxwick  V.  Brockett  323 

Oxwith  V.  Plummer  ii.  293 


P. 


Page  V.  Lever 

and  Robinson 


ii.  305 
139 

Page  and  Sharp  449 

Paignon  and  Heathcote  262 

Paine  and  Baker  168 

V.  Meller  278,  279.  282. 

329.  427.  434 

and  Bishop  of  Winchester 

ii.  25.  281 
Palmer  and  Cadell  ii.  357,  n. 

and  Murray  263.  266  ; 

ii.  126 

and  Nash  ii.  83 

Palsey  v.  Freeman  6 

Parker  and  Attorney-General    157 

and  Baldcy  *  293 

V.  Blylhmore  ii.  309 

V.  Brooke  ii.  297 


I 


INDEX    TO    CASES. 


II 


Page 

Parker  and  Colville      n.  161.  166 

V.  Frith  429 

and  Harvey  194 

and  Hoare  ii.  304 

—  and  Propert  101 

V.  Staniland  82,  83 

V.  Serjeant  ii.  161 

and  Bishop  of  Worcester 

ii.  259 
Parkes  v.  White 

ex  parte 

Parkhurst  and  Dorn>er 

V.  Lowten 

Parkin  and  Neale 
Parkins  v.  Titus 
Parks  V.  Wilsoa 
Parlett  and  TuH 
Parnther  v.  GaitskiH 
Parr  v.  Eliason 
Parry  v.  Carwarden 

and  Owen 

V.  Wright 


109 

ii.  59 

397 

ii.  299 

320 

460 

216 

132 

47 

ii.  169 

ii.  172 

22 

ii.  268 


Parsons  v.  Freeman  (Revoca- 
tion) 176 

and  ConoIIy  24,  25.  27 

Parteriche  v.  Powlett  133 

Partington,  ex  parte  66,  68,  n. 

Partridge  v.  Usborne  4 

Pasley  v.  Freeman  5 

Pate  and  Urmston  559 

Paternoster  and  Webb  80 

Paterson  and  Gibsoji  424 

Paton  V.  Brebner  304 

V.  Rogers     219.  223  ;  ii.  10 

Patten  and  Alsop  120,  121 

Patterson  v.  Slaughter  ii.  308 

Paul  V.  Wilkins  1-72 

Paxton  and  Cox  ii.  149 

Payne  v.  Cave  43 

V.  Drewe  ii.  199 

Peachy^s  {Sir  John)  case       ii.  137 

Peacock  v.  Evans  265,  266 

v.  Thewer  ii.  182 

Peahall  and  Hartley  341 

Peake,  ex  parte  ii.  61 

Pearce  v.  Newlyn  •     ii.  296 

Pearman  and  Ireson  652 

Pearson  v.  Morgan  ii.  263 

V.  Pearson  70 

v.  Pulley  '  396 

Pechell  v.  Fowler  260 

Pegge  and  Doe  469.  483 


Page 

Peles  V.  Jervies  ii.  95 

Pelley  v.  Maddin  ii.  135 

Pember  v.  Mathers      33.  39.  160. 
169.  251  ;  ii.  301 
Pembroke  (Earl  of)  and  Baden, 

172.  527 

(Earl  of)  and  Cator         565 

Pembroke's  (Earl  of,)  case  528 
Pendleton  v.  Grant  154 
Pengall  {Lord)  v.  Ross  121.  123 
Penhallow  and  Smartle  ii.  141 
Penhules  and  Treswallen  325 
Penn  and  Cuff  133 
Pennill  v.  Hallett  ii.  152,  163 
Pennington  v.  Beechey 
Pennyman  and  Nelthorpe 
Penpraze  and  Prior 
Pentland  v.  Stokes 
Penton  and  Davies 
Pepys  and  Jenkinson 
Percival  and  Foley 
and  O'Rourke 


172 


Percy  and  Crosby 
Perkins  and  Biscoe 

and  Doe 

Perry  v.  Edwards 

and  Freebody 

v.  Phelips 

Peters  v.  Anderson 
Peterson  v.  Hickman 
Petrie  and  Jackson 
Phelips  and  Perry 
Philips  and  Bateman 
v.  Bridges 


ii.  307 

73 

539 

ii.  222 

215 

32.  136 

107,  n. 

85.  210 

241 

ii.  269 

10 

ii.  84 

227 

ii.  149 

566 

266,  267 

250 

ii.  149 

85.  241 

379 


V.  Duke  of  Buckingham  211 


V.  Fielding 

V.  Redhel 

and  Steele 

Phillips  V.  Bistolli 

V.  Chamberlain 

and  Doe 

and  Harvey 

and    Sir  Harry  Hicks 


240.  246 

ii.  293 

544 

43 

158,  n. 

493 

532 

267. 

298 

and  Lady  Saltoun  335 

Phillimore  v.  Barry  101,  102.  105 
Philpott  and  Fector  ii.  76 

Phipps  V.  Lord  Mulgrave  98 

v.  Sculthorpe  79 

Phyn  and  Bell  ii.  130,  n. 
Pickering  v.  Dowson  316 
V.  Lord  Stamford  362 


INDEX    TO    CASES. 


Pickersgill  and  Bartlett 


Page 

114;   ii. 

136.  139 

Pickett  V.  Loggon  263 

Pierce  and  Acton  213 

and  Basket  454 

and  Smith  ib. 

Pierson  and  Blemerhasset         146 
Pigott  V.  Waller  177.  181 

Pilling  V.  Armitage  ii.  301 

Pimm  V.  Goodwin  .  397 

Pinchard  V.  Withers  198 

Pincke  v.  Curteis     246.  295.  427. 

434 
Wads  worth 
Ekins 
Ogbourne 


Pindar  v. 
Pippin  V. 
Pitcairne 


Pitt  and  Berney 
Pitl  V.    Chohnondhy 
Pitt  V.  Donovan 


352 

161 
149.  167 
264 
522 

ii.  278 


and  Langford,  179,  180.430 

Pitts  V.  Edelph  ii.  274 

Piatt  (Lady)  v.  Sleap  461 

Pledwell  and  Thomas  ii.  195 

Plowman  and  Doe  509 

Plummer  and  Oxwith  ii.  293 

and  Champion  90 

Plymouth  (Earl  of)  v.  Hick- 
man ii.  149 
Pocock  and  Drayson  ii.  51 
Pole  V.  Pole  ii.  145 
Pollard  and  Wood  ii.  66 
Pollexfen  v.  Moore  171  ;  ii.  20. 
57.  67.  70,  71.  73,  74 
PoUyblank  v.  Hawkins  460 
Pomeroy,  ex  parte  52 
Pomfret    (Earl    of)    v.  Lord 

Windsor  394 

Ponten  and  Mountford  ii.  184 

Poole  V.  Rudd  50 

V.  Shergold  278.  293 

Pope  and  Bevant  359 

V.  Biggs  252 

and  Goodtitle  ib. 

V.  Harris  204 

V.  Root  260.  282 

V.  Simpson  367.  428 

Popham  V.  Eyre  91.  125.  211.  429 

and  Roe  ii.  138 

Pordage  v.  Cole  49 

Porter  and  Blakey  241 

and  Eldridge  223 

and  Fry  ii.  227 


Page 

Porter  and  Richards  90 

Portman  v.  Mill         219.  223.  321 

V.  Willis  ii.  201 

Portmore  (Lord)  v.  Morris         166 

(Lord)  V.  Taylor      265,  266. 

Portsmouth  (Lord)  v.  Lord 

Effingham  394 

Pott  and  Doe  177,  n. 

Potter  and  Ithel  '  102 

V.  Potter  125.  179.  189 

Potts  V.  Curtis  268 

V.  Webb  427.  442 

Poultney  v.  Holmes  81 

Pounsett  and   Kirkland     11.  239. 

249 
Powell  V.  Divett  136 

V.  Dillon  92  ;  ii.  291 

Poivell  V.  Douhhle  42.  296 

Powell  V.  Edmunds  32.  134 

Powell  or  Deem  and  Hoivorth 

ii.  55.  293 
Powell  V.  Martyr  ii.  2.  25 

V.  Powell  194.  349 

and  Seabourne  ii.  103 

and  Stratford  166 

and  Thomas  663 


Powis  (Countess  of)  and  Doy- 

ley  60 

Powlett  and  Kelly  154 

and  Parteriche  133 

Poyntz  and  Burney  ii.  64 

Prankerd  v.  Prankerd  ii.  143 

Pratt  and  Crisp  ii.  146 

Prattent  and  Farebrother  48 

Prestage  v.  Langford    ii.  113.  117 
Preston  v.  Barker  66 

V.  Merceau  133 

and  Morris  307 

and  Newton  ii.  135, 136,  137 

V.  Tubbin  ii.  279.  281 

Preswick  and  Walker        ii.  73,  74 
Price  and  Baugh  264,  265,  266  ; 

ii.  266 

and  Bull  54 

V.  Byrn  ii.  115.  126 

V.  Copner  396 

and  Curtis  58 


Price  V.  Dyer  139.  146.  149,  150. 

309 
Price   and   Harrington  552  ;  ii.  76 

V.  Jones  426 

and  Oneby  1»4 


lii 


INDEX    TO    CASES. 


Page 

Price  and  JVlansell  153 

Price  V.  Moxon  69 

V.  Price  (1  Vern.  185.) 

ii.  307 

V.  Price  (1  Sim.  &  Stu.  386.) 

71 

V.  Strange  340 

Priddy  v.  Rose  ii.  265 

Prideaux  v.  Prideaux  67 

Prideux  v.  Gibbin  ^  176 

Prior  V.  Penpraze  539 

Pritchard  and  Carter  ii.  304 

V.  Ovey  212.  275 

V.  Quinchant  164 

Proctor  V.  Johnson  ii.  92 

and  Kemys  107 

and  White  106,107 

V.  Warren  ii.  147 

Prodgers  v.  Langham,  ii.  169,  170 
Propert  v.  Parker  101 

Prosser  v.  Watts  356 

Protheroe  and  WilHams  662 

Prowse  and   Nairn,  ii.  69,  60.  63. 
75.  162 
Prujean  and  Smart  182 

Pugh  and  Harris  543 

Pullen  and  Dalby  298.  434 

V.  Lord  Middleton  194 

Pulley  and  Pearson  395 

Pulteney  and  Lady  Cavan        ii.  88 

and  Dyer  173 

Pulvertoft  and  Metcalfe        ii.  173. 
178.  283 

V.  Pulvertoft         ii.  167.  178 

Purrier  and  Harford  278 

Purvis  V.  Rayer  335 

Putbury  v.  Trevalion  178,  n. 

Putland  and  Doe  502 

Vye,  ex  parte  ii.  168 

V.  Daubuz  ii.  103 

Pyke  V.  Williams  116 

Pyman  and  Walters  224 


Q. 


Radcliffe  v.  Fursman 
V.  Warrington 


Page 

ii.  299,  n. 

335.  424. 
427.  432 
Radd  and  Taylor  158.  167 

Radford  v.  Blood  worth  ii.  185 

V.  Wilson    194,  195  ;  ii.  307 

and  Young  463 


Quaintrell  v.  Wright 
Quincey  and  Scrafton 
ex  parte 


162 

ii.  211 

38 

Quinchant  and  Pritchard  164 


R. 

Rabbett  v.  Raikes 


38 


Radnor  (Earl  of)  v.  Shafto  189,  n. 

190 

7  V.  Vendebendy,  or  Ro- 

theram  517,  518,  519  ;  ii.  306 
Raikes  and  Rabbett  38 

Raindle  and  Brown  196 

Raine  and  Barclay  632 

Raleigh's  (Sir  Waller)  case   ii.  144 
Ramsbottom  v.  Gosden  139 

and  Hooper  ii.  76 

V.  Mortley  94.  98 

V.  Tunbridge  98 

Ramsdon  v.  Hylton  ii.  166 

Randall  and  Burkett  131 

V.  Errington  ii.  122.  124 

V.  Morgan  ii.  132.  166 

and  Tappenden  238 

Rann  v.  Hughes  99.  141 

Rapier  and  Seymour  154 

Rastall  and  Wilson  ii.  299 

Rastel  V.  Hutchinson   114;  ii.  139 
Rastron  and  Deane  260 

Rawlins  v.  Burgis  179 

Rawson,  ex  parte  ii.  259 

Rayer  and  Purvis  335 

Raymond  v.  W^ebb  64 

Rayner  v.  Julian  229 

Rea  V.  Williams  ii.  121.  129  ; 

(App.  No.  23.) 
Read  and  Edden  234 

Read  and -Hosier  141 

Read  and  Lloyd  ii.  143.  147 

and  Smith  ii.  244 

and  WagstafF  ii.  306 

V.  Ward  ii.  184 

Reade  and  Cripps  554 

and  Roe  470.  486 

Redding  v.  Wilkes  115 

Redhel  and  Philips  ii.  293 

Redington  v.  Redington       ii.  136. 
141,  142,  143,  144 
Reed  v.  Williams  ii.  297 

Reeves  and  Hardy        ii.  297.  308 
Reid  V.  Shergold  ii.  261 

Reid  and  Watson  438 


INDEX    TO    CASES. 


liii 


Reilly  v.  Jones 
Reisbeck  and  Lumley 
Relfe  and  Frewen 
Remington  v.  Deverall 
Revel  V.  Hussey 
Rex  V,  Abbot 
Rex  V.  Bellringer 

V.Boston  114 

V.  Bullock 

V.  Cracrofl 

V.  Dalby 

V.  Everard 

V.  Gregory 


Page 

216 

252 

197 

250 

278 

15 

157 

ii.  139 

ii.  188 

73 

ii.  139 

324,  n. 

64 


Richards  and  Besant 

and  Cock 

and  Compton 

and  Howell 

V.   Porter 

Richardson  v.  Mitchell 
and  Turner 


V.  Lord  of  the  Manor  of 

Hendon  450 

V.  Holland  ii.  106 

V.  HoUier  515 

V.  Hungerford  Market 

Company  256 
V.  Inhabitants  of  Horn- 
don  79 

V.  Inhabitants  of  Had- 

denham  ii.  106 

V.  Inhabitants  of  Lain- 

don  132 

V.  Lamb  616 

V.Miller  157 

V.  Osbourne  158 

V.  Inhabitants  of  Scam- 

monden  1 32 

Rex  V.  Smith        512,  n.  614,  515. 

A  pp.  No.  17 

Rex  V.   Inhabitants 

don 

V.  Snow 

— ■ —  V.  St.  John 

V.  Varlo 

V.  Winstanley 

V.  Withers 


Paoe 
136 
159 

37 
ii.  95.  97 

90 
303 

52 
225 


n. 


of  Stan- 

79 

171,  n. 

515 

157 

15 

ii.  299 

63 

85 

216  233 

129 

109.123,124 

Rhodes  and  Ibbetson      9  ;  ii.  301 

and  Selsey  (Lord)         ii.  112 

Rice  and  Bridger  207 

Rich  V.  Jackson         143. 145.  167 

• V.  Rich  (2  Ch.  Ca.)  521 

V.  Rich  (Cro.  Ehz.)     ii.  102 

Richards  v.  Barton  238.  447.  461. 

541 


Reynolds  v.  Blake 

and  Jenkins 

V.  Nelson 

V.  Waring 

■  ex  parte         ii. 


and  Warren 

Richmond  and  City  of  London  267 
Ricks  and  Dyke  ii.  48 

Riddle  v.  Emerson  ii.  132 

and  Gregson  441.  443 

Rider  v.  Kidder  ii.  136.  139 
Ridgard  and  Bonney  ii.  53,  54,  56 
Ridler  v.  Ridler  ii.  108 
Rigby  and  Champion  ii.  112.  126 
v.  Macnamara    (6    Ves. 

jun.  117)  70 
V.  Macnamara  (6  Yes. 

jun.  466)  ib. 
v.  Macnamara  (6  Ves. 

jun.  515) 


Right  v.  Bawden 
v.  Beard 


n. 


Ripley  v.  Waterworth 


Risney  v.  Selby 
Rist  v.  Hobson 
Rivers  v.  Steele 
Roach  and  Rows 
v.  Wadham 


4,5. 


67 

141 

249 

187 

332.  560 

87 

ii.  282 

ii.  278 

i.  79,  80 

.  25.  197 

70 


n. 


Roahde  and  Sharpe         ii 
Roadhead  and  Headley 
Roadknight  and  Newbold  183 

Roake  V.  Kidd  340.  355 

Rob  V.  Butterwick  165 

Roberdeau  and  Hanson         49.  61 
Roberts  and  Evans  84 

and  Keane  ii.  64 

V.  Massey  60,  61  ;  ii.  2 

■ V.  Wyatt  40.  449 

Robertson  and  M'Dowgate  ii.  278 


Robins  and  Maberly 
and  Sherwood 


Robinson  v.  Anderton 

and  Bridges 

V.  ElHot 

and  Farmer 


Robinson  v.  Harrington 
Robinson  and  Lill 

£md  Luxton 

V.  Page 

and  Stanley 


243 

43.  273 

563,  n. 

ii.  13 

329 

105 

ii.  193 

ii.  27 

240 

139 

203 


INDEX    TO    CASES. 


V.  Popham 
V.  Reade 
V.  Rovvlston 


liv 

Page 

Robotham  and  HugVies  461 

Robson  V.  Brotvn  174 

Robson  V.  Kemp  ii.  299 

Roche  V.  O'Brien         265  ;  ii.  126 
Rochfort  and  Baldwin  274 

Rodney  (Lady)  and  Lord  Ox- 
ford 188 
Roe  V.  Lowe                              195 

V.  Mitton     ii.  163.  165.  168 

ii.  138 
470.  4S6 
392 
10.  297. 
;   ii.  2.  20.  28 
81 
298 
ii.  14 
41.171.  439; 
ii.  74 
262 
164,  165,  n. 
165,  n. 
450 
429 
223  ;    ii.  10 
ii.  309 
ii.  34 
296; 
ii.  23.  32 
Roll  V.  Osborne  ii.  77,  n. 

Romilly  (Sir  Samuel)  v.  James 

342 
Rondeau  v.  Wyatt  105.  113 

Root  and  Pope  260.  282 

Rorke  v.  Webb  ii.  Ill 

Roper  V.  Coombes  333.  432 

Rosamond  v.  Lord  Melsington  166 
Rose  V.  Calland  295.  340 

V.  Cunyghame     90.  95.  176. 

179.  189 

and  Priddy  ii.  265 

Rosewell  and  Smith  ii.  261 

Rosher  and  Headon  267.  269 

Ross  and  Lord  Pengall,  or 

Fingal  121 

Ross  V.  Ross  194 

Rosswell  V.  Vaughan         332.  560 
Rotherham  and  Radnor,  or 

Bodmin  517,  518,  519;  ii.  306 
Rothschild  and  Doloret  202.  429 
Round  and  Cason  ii.  307 
and  Oldfield       26.  307.  313 


Roebuck  and  Calcrafl 
300; 

and  Hoby 

RofFey  v.  Shallcross 
Rogers  V.  Boehm 
and  Bowles 

and  Bruce 

Rogers  v.  Earl 
Rogers  and  Farmer 

and  Fishe 

and  Newman 

and  Paton    219 

V.  Seale 

V.  Skillicorne 


Rokebtj  {Lord)  and  Binks 


Page 

Round  and  Ortread  199,  200 

Routledge  and  Doe      ii.  157.  170 

V.  Grant  43.  89 

Rowe  and  Atkins  ii.    133 

and  Jackson    (4  Russ.  614.) 

ii.  304 
and  Jackson  (2  Sim.   &   . 

Stu.  472.)  ii.  308 

V.  Roach  ii.  278 

V.  Teed  113 

Rowlston  and  Roe  392 

Rowley  and  Cornish  422.  431 

Rowntree  v.  Jacob  ii.  62,  n. 

Royal  E.  A.  Office  and  Henkle, 

158.  167 

and  Morse  265;  ii.   126 

Royle  and  Clarke  ii.  68.  66 

Royse  and  Hamilton  ii.  280.  294 
Rucker  v.  Cammeyer  104,  105 
Rudd  and  Poole  50 

Rndele  and  Cass  277 

Ruffin  and  Hodder  71 

and  Nodder  67 

Rushley  and  Houghton  ii.  198 

Rushworth's  case  320 

Russel  and  Bellew  ii.  112 

Russell  and  Stokes  ii.  78 

and  Western        85.  93.  103. 

189,  n.  259.  301 

and  Webb  461  ;  ii.  78 

Rutherford  and  Loyes  309 

Rutland's  (Countess  of)  case  146 
Rutland  (Duchess  of)  and 

Wakeman  63.  370.  536,  537 
Ryall  V.  Ryall  ii.  136.  138.  149 
Ryde  and  Jones  554 

Ryder  v.  Gower  69 

V.  Wager  183,  184 

Ryle  V.  Brown  265 


S. 


Sabbarton  v.  Sabbarton  ii.  335,  n. 
Sacheverell  and  Davie  ii.  83 

Sadler  and  Bennett  211 

Sadlier  and  Bullock  ii.  157.  306 
Saint  Alban's  (Duke  of)  v. 

Shore  215  240.  245.  248 

Saint  Cross  (Master  of)  v. 

Lord  Howard  de  Walden  325 

Saint  John  and  Biddulph     ii.  222. 

297.  301 


INDEX    TO    CASES. 


Iv 


Page 

ii.  335 

ii.  168 

515 

175 

91 


Saint  John  v.  Champneys 

(Lord)  V.  Lady  Saint 

John 

and  Rex 

V.  Bishop  of  VVinton 

Saint  Paul  and  Brodie 
Saint  Paul's  (Dean  and  Chap- 
ter of)  V.  Dr.  Betesworlh212 
Sale  V.  Cromptop  ii.  194 

Sales  and  Goodright  521 

Salisbury  and  Gorman  146.  148-9 
Salisbury  (Ld.)  v.  Wilkenson  ii.  14 
Saltoun  (Lady)  v.  Philips  335 

Salvvay  and  Foot  135 

Samborne  and  Oldin  ii.  116 

Sanders  v.  Deligne  ii.  260 

Sanderson  v.  Walker  ii.  115 

Sandford  and  Keech  ii.  1 14 

andWillet  179,  n. 

Sands  and  Attorney-General    463. 
513.  515.  521.  525.  528 
Sandys  and  Montesquieu      ii.  121 
Sangon  v.  Williams  194 

Sarrell  and  Colman  ii.  378 

Savage  v.  Carroll     117.  129,  130. 
180.  189  ;  ii.  149 

V.  Foster  iL  262 

V.  Humble  ii.  52 

and  Jordan  359,  362 

Savage  v.  Taylor  184,  n.  ;  ii.  266 
Savage  v.  Whilbread  534 

Savilev.  Savile  71.  257 

Saville  and  Goodtitle  187,  n.  265 
Saunders  v.  Lord  Annesley  254. 
298.  n.  397 
Saunders  r.  Burroughs  ii.  114 
Saunders  v.  Dehew  ii.  259 

and  Jerrard  ii.  259,  260,  307. 

309 

v.  Musgrave  31 

V.  Wakefield  85 

Saundersonv.  Jackson  93. 100, 101 
Saiobridge  and  Bret      526  ;  A  pp. 
No.  19 
Sawbridge  and  Wanby  110 

Sawkins  and  Jordan  145 

Say  v.  Barwick  203 

Say  and  Seal's  (Lord)  case 

ii.  298,  299 
Sayer  and  Doe  249 

Sayle  v.  Freeland  194 

Scammonden  (Inhabitants  of) 

and  Rex  132 


Page 

Scarborough   (Earl  of)  and 

Worsley        ii.  280,  281.  283, 

284 

Schneider  v.  Heath  34.  315 

>-  v.  Norris  100 

Schofield  and  Bayly  ii.    183 

and  Kenworthy    93,  94.  106. 

109 
Scholes  and  Blackburn  47 
Scholey  and  Metcalf  541 
and  Scott  ib. 


Schulenburgh  and  Spenceley 

ii.  300 
Scorbrough  v.  Burton  ii.  24 

Scoit  and  Attorney- General  517,  n. 


Scott  v.  Bell 

and  Doe 

v.  Fenhoulett 

V.  Hanson 


u.  167 

470.  488 

523 

308 

436 

211 

ii.  280 

66,  67 

541 

and  Stapylton,  221.  295.  341 


and  Hoggart 

v.  LangstafTe 


and  Mountford 

v.  Nisbitt 


v.  Scholey 


Tyler 


Scrafton  v.  Quincey 
Scroope  v.  Scroope 
Scrughan  and  Tardiffe 


ii.  53 

ii.  211 

ii.  145 

ii.  68.  61, 

62.  66 

79 

ii.  103 

41 


Sculthorpe  and  Phipps 
Seabourne  v.  Powell 
Seaforth  (Lord),  ex  parte 
Seagoodv.  Meale  90.  95.  121.  124 
Scale  and  Rogers  ii.  309 

Seaman  v.  Yawdrey  318.  351.  354 
Searles  and  Newstead  ii.  161.  278 
Secrelan  and  Harrington  224 

Seddon  v.  Senate  ii.  83.  93 

Sedgwick  v.  Hargrave  199 

and  Hilhcox,      511  ;  ii.  259. 

286.  289, 290 
Selby  v.  Chute  ii.  84 

and  Lisney,  or  Risney    4,  5. 

332.  560 
Selby  V.  Selby  102  ;  ii.  73 

Selkrig  v.  Davies  ii.  130,  n. 

Selleck  and  Jennings  ii.  260 

Selsey  (Lord)  v.  Rhodes  ii.  112 
Senate  and  Seddon,  ii.  83.  93 

Senhouse  v.  Christian  ii.  129 

v.  Earle  ii.  171.  297 

Sevier  v.  Greenway  255 


Ivi 


INDEX    TO    CASES. 


Page 

Serjeant  and  Parker  ii.  161 

Serra  and  Bascoi  ii.  295 

Seton  V.  Slade     85.  173.  246.  426 
430.  434.  443 
Seiva7'd,  or  Stexoart  and  Den- 
ton 116.231 
Seward  v.  Willock    247,  248.  432 
Sewell  and  Coussmaker  356  ; 
App.  No.  14 
Sewell  V.  Johnson                ,        71 

and  Legate  194 

Seymour  v.  Nosworth  ii.  305 

V.  Rapier  154 

Shafto  and  Earl  of  Radnor   187,  n. 

190 
Shales  V.  Shales  ii.  141,  142.  144 
Shallcross  and  RofFey  298 

Shalmer  and  Spalding  ii.  32,  33 
Shannon  v.  Bradstreet  130.  201 
Shapland  v.  Smith  340.  377 

Sharp  V.  Ardcock  340 

Sharp  V.  Page  449 

Sharpe  and  Clay  358  ;  App. 

No.  15 
Sharpe  v.  Roahde  ii.  25.  197 

Shaw  and  Dickenson  ii.  141 

V.  Jakeman  164.  242 

and  Morgan  223.  226 

and  Williams  23a 

V."  Wright  348 

Shearwood  and  Hare  159.  166 
Shee  and  Hibbert  287 

Sheffield  v.  Lord  Mulgrave      340. 

433 
Shelburne  (Countess)  v.  Earl 

of  Inchiquin      156.  159.  167, 
168 
Sheldon  v.  Cox  ii.  222.  278 

Shelley's  case  375 

Shelly  V.  Nash  272 

Shelling  v.  Farmer  155 

Shelton  v.  Livins  32 

Shenton  v.  Jordan  215 

Shepherd  v.  Kain  316 

and  Knollys  186 

Sheppard  v.  Gosnold  167 

Sherard  and  Floyer  262 

Shergold  and  Poole  278.  293 

and  Reid  ii.  262 

Sheriffe  and  Jones  1 68 

Sherly  v.  Fagg  ii.  260 

Sherman  and  Cockes  ii.  274 


Sherwin  and  Earl  of  Bath 
Sherwood  v.  Robins 
Shills  and  Grant 
Shine  v.  Gough  ii. 

Shipman  v.  Thompson 
Shippey  v.  Derrison 
Shirley  v.  Davies 

and  Horniblow 

and  Nott    . 

and  Skipwith 

V.  Stratton 

V.  Watts 

Shore  and  Duke  of  St.  Alban's 

215.  240.  245.  248 


205. 


Page 

213 

43.  273 

ii.  64 

259.  267 

451 

93.  102 

308 

289.  346 

178 

532 

257.  317 

ii.  199 


—  and  Bateman 

—  V.  Collett 

—  and  James 


130,  n. 
532 
293 
319 

ii.  191 

257 

39 


Shovel  (Sir  C.)  v.  Bogan 

Shoyer  and  Gould 

Shrimpton  and  Conway 

Shum  and  Taylor 

Shuttleworth  and  Curling  243;  ii.  14 

Sibson  and  Fletcher 

Siddon  v.  Charnells 

Sidley  and  Fletcher 

Sikes  V.  Lister 

Siicock  and  Snell 

Silk  and  Hunt 

Sime  and  Graham 

Simmons  v.  Cornelius 

and  Farebrother 

V.  Hunt 

Simon  v.  Motivos 


H.  261 
ii.  260 
ii.  147 
172.  192 
397 
233 
450 
118.  131 
107 
554 
49.  105 
228 
355 
ii.  60 
369 
ii.  53 
367.  428 
261.  428 
Sims  and  Wiltshire  46 

Singleton  and  Darley  262 

Skelton  and  Smith  ii.  4 

Skelton's  case  223 

Skett  V.  Whitmore  ii.  136 

Skillicorne  and  Rogers  ii.  34 

Skinner  and  Burrough  47 

V.  Stacy  262 

Skipwith  V.  Shirley  632 

Slade  and  Jeudwine  233- 

and  Seton  86.  173.  246.  426. 

430.  436.  443 


Simons  and  Cutler 
Simpson  and  Beevor 

and  Cowell 

V.  Gutteridge 

and  Hill 


and  Pope 

and  Whorwood 


INDEX    TO    CASES. 


Ivii 


Slade  and  AVhcatley 
Slaughtt  r  and  Patterson 
Sleap  and  Lady  Piatt 
Slee  and  Croft 
Sloane  v.   Cadosan     ii. 


Paac 

301 

ii.  308 

461 

ii.  375 

168.  App. 

No.  26 

Sloman  v.  Heme  ii.  299 

Slop er  V.  Fish  340;   ii.  196 

Small  V.  Atsvood  4.  205.  258.  261. 

565;   ii.  126 

V.  Jefierys 

V.  Marwood 

Sniallcomb  v.  Buckingham 


Smallwood  and  Walker  ii.  38 
Smart  v.  Prujean 

and  Tanner 

Smartle  v.  Penhallow  ii 

Smith  V.  Baker 

and  Beatniff 

V.  Burnam 

V.  Lord  Camelford 

V.  Clarke 

V.  Compton 

and  Cooper 

and  Deacon 


n.  128 
ii.  50 
ii.  199 
281 
182 
94 
141 
135 
222 
434 
ii.  135 
26,  27 
99.  104 
94.  101 
ii.  151,  152, 
153 
181 
250 
5 


11. 
ii. 

426. 


11. 
90. 


. V.  Dearmer 

and  Doe 

and  De  Graves 

V.  Sir  Thomas  Dolman     434 

V.Garland  ii.  175,  176, 

177 

324 

171.  189 

246  ;   ii.  8 

ii.  32.  45 

341 

430  ;   ii.  293 

172.  192.  370; 

ii.  20.  57 

Smith  and  Hincksman  267 


and  Gibson 

and  Green 

and  Grosock 

V.  Guy  on 

— ^ —  and  Hartley 
Smith  V.  Hall 
V.  Uihbard 


V.  Jackson 
V.  King 


Smith  and  the  King 

514,  515. 

Smith  and  Kirkman 


Smith  V. 
Smith  V, 


Leigh 
Lloyd 


V.  Low 

—  and  Marlow 

—  and  Martin 
Vol.   I. 


•226 

394.  511 

511,  512,  n. 

App.  No.  17 

194 

ii.  27 

49.  226,  227. 

296 

ii.  290 

340.  348 

240.  247 

*G 


Smith  V.  Nelson 

and  Newall 

V.  Pierce 


Page 

64 

ii.  26 

454 


Smith  ( Treasurer  of  the  JV.  I. 
D.  C.)  V.  the  City  of  London 

ii.  134 
Smith  V.  Read  ii.  244 

V.  Kosewell  ii.  261 

and  Shapland  .340.  377 

V.   Skelton  ii.  4 

V.  Smith  363 

V.  Spooner  ii.  278 

V.  Surman  82.  89 

(Lady)  and  Symms  451 

and  Thomlinson     ii.  56.  267 

V.  Tolcher  296 

V.  Turner  1 17 

and  Vol!  119.   131 

V.  Watson  95 

(Sir  William)  v.  Wheeler 

ii.  51 

V.  Wilkinson  ii.  135 

V.  Woodhouse  245 

and  Yems  ii.  331 

Snag's  case  ii.  306 

Snaith  and  Brooks  67 

and  Hogg  133 

Sneil  and  Silcock  397 

Snelling  v.  Squint  ii.  285 

Snow  and  Rex  171,  n. 

Sollet  and  Dale  234 

Solomon  v.  Turner  170 

Soltan  V.  Cooke  360 

Some  V.  Taylor  326 

Somerset  (Duke  of)  and  Gour- 

lay  275 

Sorrell  v.  Carpenter    ii.   281.  283, 

284 

and  Williams  ii.  220 

Southcote  and  Harrison  ii.  59.  61. 

244 

and  Sweet  ii.  274 

Southgate  and  Chaplain  ii.  84 

Southhouse  and  Brown  ii.  14 

S.  S.  Company  v.  D'Oliff         160 
Sowarsby  v.  Lacy  ii.  34 

Sowden  v.  Sowden  ii.  151 

Sowerby  v.  Brooks  ii.  286 

Spaight  and.  O'Connor  145 

Spalding  and  Shalmer        ii.  32,  33 
;  Sparrow  v.  Hardcastlc  178,  n. 

Spcldt  v.  JjeclHncre  ii-  264 


Iviii 


INDEX    TO    CASES. 


Page! 


Spenceley  v.  Schulonburgh  ii.  300 


Spencer  and  Fane 

V.  Marriott 

V.  Venacre 

Spencer's  case 
Sperling  v.  Trevor 
Spicer  v.  Middleton 
Spiller  V.  Spiller 

V.  Westlake 

Spillet  and  Lloyd 
Spittle  V.  Lavender 
Spooner  and  Smith 
Spottiswoode  and  Capper 
Sprateley  v.  Griffiths 
Spratt  V.  Jeffery 

V.  Hobhouse         ii. 

Spurrier  V.  Elderton 

V.  Fitzgerald 

V.  Hancock 


n. 


338 
ii.  85 
185 
ii.  78 
357 
173 
217 
246 
ii.  135,  136 
63 
ii.  278 
ii.  61 
262 
335,  336 
188.  190 
47  ;  ii.  16 
114 
279.  367. 
428,  429 
ii.  19 
ii.  285 
258 
233.  240 
358 


V.  Mayoss 

Squint  and  Snelling 
Squire  v.  Baker 

V.  Tod 

Stabback  v.  Leatt 
Stackhouse  v.  Barnstone  395 

Stace  and  Blackburne  226 

Stace  and  Doe  492 

Stacpole  and  Gore  68 

Stacy  and  Skinner  252 

Stadd  V.  Cason  ii.  301 

Stadt  V.  Lill  85 

Strainbridge  and  Jolland  550  ; 

ii.  222  277.  301 
Staines  v.  Morris    39.  450  ;  ii.  25 


Stamford  and  Best 

(Lord)  and  Pickering 

Stammers  v.  Dixon 
Standen  and  Standen  ii 

Standley  v.  Hemmington 
Standon  (Inhabitants  of)  and 
Rex 


622 
362 
158 
376 
247 

79 
ii.  272 


Stanford  and  Walton 
Stangroom  and  Marquis  of 

Townsend  136.  138.  140. 

169.  319 

Stanhope's  (Lord)  case  295 

Stanhope  and  Griffin     ii.  166.  179 

v.  Earl  Verney    467  ;  ii.  75. 

265 
Staniland  and  Parker  82,  83 

Stanley  and  Jones  ii.  274 


Slcmhij  V.  Lee 
Stanley  v.  Robinson 
Stansfield  v.  Johnson 
Stanton  and  Lavender  i 

Stapely  and  Butcher    116  ;  ii 
Staple  and  Doe  470.  483 

Stapylton  v.  Scott     221.  295 
Statham  and  Joynes 

and  Gouch 

Stauglhnn  v.  Hawley 
Sleadman  v.  Lord  Galloivay 
Stedman  and  Gough  ii 

Steed  V.  Whitaker  ii 

Steel  and  Wray  ii 

Steele  v.  Philips 
Steele  and  Rivers  ii 

Steere  (or   Stare)  and  Toul 

min  ii 

Stent  V.  Bally 
Stephens  v.  Bateman 
Ste23hens  v.  Brydges 
Stephens  and  Copeland 

v.  Olive 

v.  Stephens 

V.  Truman 

and  Vernon 


Page 

1.  355,  n. 
203 

106.  109 
ii.  34 
277 
485 
341 
137 
362 
198 
440 
103 
278 
140 
644 
282 


Stephenson  v.  Esdaile 
291 
Stephenson  and  Morris 
Sterum  and  Colclough 
Stevens  v.  Adamson 
v.  Baily 


268.  279 
277,  278 
262 
463 
62 
ii.  168 
App.  n. 
ii.  378 
51 
219,220. 
434  ;  ii.  10 
198 
58 
310 
191 
4 
230.  370 
ii.  159 
ii.  88.  98 
294,  n. 
296 
397 
113 
Steiuard  or  Seward  and   Den- 

•  ton  116.  231 

Slibbert  and  Taylor   ii.   269.  271. 

293 
Stileman  v.  Ashdown  ii.  145.  166 
Stile  and  Taylor  ii.  159 

Stiles  v.  Covvper  131 

and  How  464 

Stilvvell  V.  Wilkins  262 

Stokes  and  Hamil  ii.  265 

V.  Moore  91.  100.  102 

and  Pentland  ii.  222- 


and  Dobell 

and  Guppy 

Stevenson  and  Hayvvard 

and  Hesse       162  ; 

Stewart  v.    AUiston    42 

and  Bowles 

v.  Careless 


INDEX    TO    CASES. 


lix 


Page 

Stokes  V.  Russell  ii.  78 

Stonnaid  and  Burling  ii.  52 

Stone  and  Sir  George  Binion 

ii.  143 

and  Gwillim  231 

and  Whiting  79 

Story   V.  Lord   Windsor     ii.  274. 
304,  305,  306 
Stourton  (Lord)  v.  Sir  Thomas 

Meers  433 

(Lord)  and  Sir  T.  Meers   ib. 

Stowe's  case  324,  n. 

StradUng  and  Wills  116,  117 

Strange  v.  Price  340 

Stratford  v.  Bosvvorth  89 

V.Powell  116 

V.  Twyman  ii.  Ill 

Strathmore  (Lady)  y.  Bowes 

(Term.  Rep.)  181 

(Lady)  v.  Bowes  (Ves. 


519 

ii.  196 

362 

205.  257. 

318 

241 

61 

163.    177. 

260 

Strode    and    Casaniajor    65.  344, 

345 
155 
ii.  163 
531 
57 
261 
ii.  102 
257 
203.  n. 


jun.) 

(Earl  of)  and  Davis 

Stratton  and  Couch 
and  Shirley 


Street  v.  Brown 
Stretton  v.  Stretton 
Stringer  and  While  ii. 


V.  Lady  Falkland 

and  Osgood 

Stuart,  ex  parte 
Stubbs  and  Mathews 
and  Wall 


162 


Studly  and  Fielder 
Stukeley  and  Keen 
Stut  and  Gascoigne 
Style  (or  Stiles)  v.  Martin   ii.  281, 

282 

Suffolk  and  Harding  152 

Surman  and  Smith  82.  89 

Surry  and  Klinitz  49 

Sutton  and  Banks  517 

and  Blore  91.  101.231 

V.  Chetwynd  ii.  176 

and  Hasker  355 

and  Kenyon  178 

Swaine  and  Zouch  ii.  104 

Swan  V.  Cox  246 

Swan's  case  ii.  87 


Page 

Swanborough  v.  Coventry  41 
Svvannock  v.  Lifford          517.  519 

Sweet  V.  Southcote  ii.  274 

Swift  V.  Davis  ii.  141 

and  Garnons  242 

and  Lightburne  58 

and  Lowe  130 


Swinnertonand  Butler  ii.,85.  87.  89 
Swymmer  and  Goodright  350 

Sybourn  and  Doe  470.  485 

Sylvester  and  Dyke  351 

Symmons  and  Mackreth  ii.  57,  58. 
61.  65,  66.  74.  76 
Symms  v.  Lady  Smith  445 

Symonds  v.  Ball  109 

Symondson  V.  Tweed        110.  128 

T. 

Tadman  and  Ferguson  ii.  23 

Tait  V.  Lord  Northwick  70 

Talbot  and  Duke  of  Chandos     38 

and  Lindsay  ii.  299 

Tankard  v.  W^ade  470 

Tankerville  (Lord)  and  Bennett 

185 
Tanner  and  Chapman 

V.  Florence 

and  Meadows 


and  Smart 

Tapp  V.  Lee  5 

Tappenden  v.  Randall 
Tarback  v.  Marbury 
Tardiffe  v.  Scrughan 


ii.  57 

ii.  293 

29 

94 

ii.  263,  n. 

238 

ii.  179 

i.  58.  61, 

62.  66 


Tasburgh  and  Lord  Clermont  205 
Tatem  v.  Chaplin  ii.  78 

Taunton  and  Adams  ii.  61 

Tayler  v.  Waters  79 

Taylor  v.  Alston  ii.  139 

and  Attorney-General         20 

v.  Baker  (1  Dan.  71)  ii.  290 

v.  Baker  (5  Price  306) 

ii.  292 

V.  Beech  116 

v.  Debar  ii.  103 

and  Fenner  ii.  168 

and  Freeman  641,  n. 

and  Griffin  198 

v.  Hawkins  ii.  66 

v.   lloorde  393 

and  Lord  Portmorc  265,  266 


Ix 


INDEX    TO    CASES. 


Page 

Taylor  and  Savage  184,  n.;  ii.  266 
Taylor  v.  Shum     •  39 

and  Some  326 

V.  Stibbeit    ii.  269.  271.  293 

ii.  159 

141,  1  t2 

ii.  263 

93 

228 

ii.  263 

326 

113 

182 

ii.  80 


Taylor  v.  Stile 
Taylor  v.  Taylor 

V.  Wheeler 

Tawney  v.  Crother 
Teal  and  Bramby 
Teasdale  v.  Teasdale 
Tedcastle  and  Morgan 
Teed  and  Rowe 
Telford  and  Johnson 
Tempest's  case 
Templar  and  Evelyn  ii.  159,  160, 
161.  187 
— —  and  Hodges  ii.  195 

Temple  v.  Brown         333.  447,  n 


Templer  v.  Maclachlan 
Tenant  and  Hearne 
Tenant  v.  Jackson 
Tendring  v.'  London 
Terrel  and  Clarke 
Terrie's  case 

Terry  or  Ferry  v.  Williams 
Tetley  v.  Tetley  i 

Tewksbury  (Bailiffs,  &c.  of) 

V.  Bricknell 
Thanet  (Earl  of)  and  Mihvard 

425.  437 
Thelluson  v.  Woodford 
Thewer  and  Peacock 
Thicknesse  v.  Vernon 
Thistlewood,  ex  parte 
Thomas  v.  Cook 
Thomas  V.  Davis     155.   163. 


652 

423 
32,  n. 

207 
87 

464 

240 
i.  330 

157 


Thomas  and  Jones 

V.  Pledwell 

V.  Powell 

V.  Thomas 

and  W^ynne 

Thomlinson  v.  Smith      ii.  J 
Thompson  and  O'Reilly 

V.  Towne 

Thompson,  or  Bonham  and 

Williams  440 

Thompson  and  Shipman  451 

and  Collett  240 

Thompson  v.  Miles  240,  241.  287 

V.  Wilson  .  79 

Thorn  v.  Newman  460 


181 

ii.  182 

ii.  127 

262.  266 

79 

170. 

256 

307 

196 

663 

152 

451 

267 

lis 

173 


Page 

Thnrne  and  Bullock  ii.  180 

Thornhili  and  Fleaureau  208.  335. 
238  ;  ii.  10 
Thornhili  v.  Thornhili  70 

Thorp  V.  Freer  ii.  23.  35 

Thring  v.  Edgar  ii.  307 

Thruxton  v.  Attorney-General 

525.  527,  528 
Thwing  and  Gascoigne        ii.  1 35. 

137 
Thynn  v.  Thynn  ii.  132 

Tickner  v-  Tickner  178 

Tiffin  V.  Tiffin  521,  522.  526,  527 


Till  and  Coslake 
Tilsley,  ex  parte 
Tinney  v.  Tinney 
Tipping  V.  Gartside 
Titiis  and  Parkins 
Tod  and  Squire 
Todd  and  Burton 


429 
71 
133. 362 
63 
450 
233.  240 
ii.  10  ;  A  pp. 
No.   21 
ii.  10.  App.  No.  21 
231.   297 


Todd  V.  Gee 

Todd  V.  Gee 

Tolcher  and  Smith 

Toilet  and  Fletcher 

Tollett  V.  Tollett 

Tolson  V.  Kaye 

Tombs  and  Cooke  84.  93 


Tomkies  and  Lloyd 
Tomkins,  ex  parte    73  ; 


11. 


296 
194 
158,  n. 
390 
96.  97. 
115 
ii.  83 
App.  No. 
12 
293 
248.  287 
116 
20,21 
ii.  67 
ii.  104 
46 
ii.  268.  279 
ii.  265.  274 
Towgood  and  Anson  62 

Towiie  and  Thompson  173 

Townley  v.  Bed  well       187  ;  ii.  10 
Townsend  v.  Champernown 

447.  609 

(Lord),  and  Gardner 

ii.  161 
To%vnsend  {Marquis  of)  v. 

Bishop  of  JSTorivich  605 

Townsend  v.  Townsend  (Bro. 

C.  C.)  394 


Tomkins  v.  W^hite 
Tomlin  and  Hearne 
Toole  V.  Mediicolt 
Topham  and  Capp 

V.  Cunstantine 

Toulmin  and  Hammond 

and  Langstroth 

V.  Steere 

Tourviile  v.  Naish 


INDEX    To    CASES. 


ixi 


Page  I 

Townsheud  (Lord)  v.  Granger  37  \ 

and  Mackintosh      ii.  130,  n.  j 

and  MuUins  58  i 

(Marquis  of)   v.   Stan-  | 

groom  136.  138.  140.  j 

159.  319 


228; 
ii.  8  I 
395  I 
ii.  159  : 

ii.  178  i 


Towmhend  v.  Townshend 

Tracey  and  Jenner 

and  Langlon 

Trapaud  v.  Cormick 
Trappes  and  Tunstall  642  ;  ii.  223. 

278 

Trecothick  and  Coles         87.  101. 

104.  106.  109.  123.  206. 

259.  263.  282.  285  ; 

ii.  110.  117 

Tredennick  and  Dunbar   ii.  126. 

269 
ii.  8 
ii.  101 
340 
3,4 
325 
178,  n. 
91 
ii.  305 
215 
357 
ii.  70 


70 


Trefusis  v.  Clinton 
Trenchard  v.  Hoskins 
Trent  v.  Manning 
Tresham  and  Ekins 
Treswallen  v.  Penhules 
Trevalion  and  Putbury 
Trevalyan  and  Gordon 
Trevanion  v.  Mosse 
Trevor  and  Hopson 

and  Sperling 

Trimmer  v.  Bayne 

Trimuel's  (Commissioner)  case 

174 
Tritton  and  Crofts  251 

Trower  v.  Newcombe    4.  42.  309 
Truman  and  Stephens  ii.  378 

Tubbin  and  Preston       ii.  279.  281 
Tuchin  and  Bartlett  432 

Tucker  and  Dare  38.  529 

Tull  V.  Parlett  132 

Tunbridge  and  Ramsbottom        98 
Tunstall  v.  Trappes  542  ;  ii.  223. 

278 
Turner,  ex  parte  ii.  33 

V.  Back  ii.  261 

Turner  v.  Beaurain  239.  288,  289 

6 
192.  349 

379 

241,  n. 

52 

170 

117 


Page 

Turnor  and  Coster  434 

Turnour  and  Morison  101.  103 

Turton  and  Benson  ii.  265 

Tweddell  v.  Tweddell  396 

Tweed  and  Symondson     110.  128 
Twigg  V.  Fifield  62  ;  ii.  8 

Twining  v.  Morris        24.  30.  205. 
261.  298,  299 
Twistleton  v.  Griffith         264.  266 
Twyford  v.  Warcup  319 

Twyman  and  Stratford  ii.  Ill 

Tyler  v.  Beversham  324 

and  Scott  ii.  53 

Tyndale  v.  Warre  70 

Tynman  and  Cooper  ii.  265 

Tyrconnel  (Earl  of)  v.  Duke 

of  Ancaster  36 

Tyrer  v.  Ardngsiall,  or  Bailey  445 
Tyrer  and  Onions  183 


U. 


Ulrich  V.  Diichfield  153 

Underhil  v.  Horwood  262 

Underwood  v.  Lord  Courtown 

ii.  222.  274 
V.  Hithcox  259 


Turner  v.  Harvey 
— —  and  King 

and  Marwood 

and  Nash 

V.  Richardson 

and  Soloman 

■ and  Smith 


Upcot  and  Coleman        85.  87,  88 

Upton  V.  Basset  ii.  157 

and  Clark  54 

V.  Lord  Ferrers  66.  69 

and  Watson  226 

Urmston  v.  Pate  559 

Usborne  and  Partridge  4 


Vale  V.  Davenport  57 

Vancouver  v.  Bliss   10.  229.  295  ; 

ii.  24 
Vane  v.  Lord  Barnard  553  ;  ij.  279 

59 

167 

ii.  86 

332,  560 

318.351. 

354 

183 

ii.  185 


Vansittart  v.  Collier 
Varlo  and  Rex 
Vaughan  and  Evans 

and  Koswell 

Vawdrey  and  Seaman 


Vawser  v.  Jeffrey 
Venacre  and  Spencer 
Vendebendy  and   Bodmin,  or 

Radnor  517,  518,  519  ;  ii.  306 
Verlandcr  v.  Codd  93 


Ixii 


INDEX    TO    CASES. 


Vermedum  and  Gell 

Verney  (Lord)  v.  Carding  ii 

(Earl)  and  Stanhope 

ii.  75 
Verner  v.  Winstanley  255 
Vernon,  ex  par/e  192;  ii 

andAtcherley   171.  174 

and  Lord  Hardwicke  ii. 

Vernon  v.  Keys 

V.  Stephens 

and  Thicknesse  ii 

V.  Vernon 

Vigor  and  Attorney-General 

Villiers  v.  Villiers 

Vincent  and  West 

Viney  and  Neal 

Vizard  v.  Longdale 

Vizod  V.  Londen 

Voll  V.Smith  119 


Page 

191 

.  269 

467; 

.  265 

.  262 

136 

,  175 

120. 

122 

6 

51 

127 

175 

182 

626 

70 

84 

362 

ib. 

131 


W. 

Waddington  v.  Bristow 
Waddy  v.  Newton 
Wade  and  Beckford 
Wade  V.  Marsh 

and  Tankard 

Wadham  and  Heard 

and  Roach 

Wadsley  and  Mayfield 
Wadsworth  and  Crosby 


82 

325 

388.  395 

253,  n. 

470 

245,  246 

ii.  79,  80 

83,  84 

76.  79. 

82,  S3,  84 

352 

183,  184 

146 

ii.  306 

86 

ii.  197 

85 


and  Pindar 

Wager  and  Ryder 

Waghorn  and  Kaye 

Wagstaflfe  v.  Read 

Wain  V.  Warlters 

Wake  and  O'Dell 

Wakefield  and  Saunders 

Wakeman  v.  Duchess  of  Rut- 
land 63.  370.  636,  537 

Walden  (Lord  Howard  de)  and 

Master  of  St.  Cross  326 

Waldron  v.  Forester  ii.  8.  21 

Waldron  and  Honeycomb     ii.  211 

Walker  v.  Advocate-General      20 

V.  Barnes 

and  Boothby 

V.  Burrows  ii 


Walker  and  Campbell  ii.  109. 


262 
227 
146 
115. 
122 


Walker  v.  Constable 

V.  Moore 

and  Only 

V.  Preswick 

V.  Small  wood 

and  Sanderson 


Pa-e 

706.  109. 

151.  238 

236 

ii.  301,  302 

ii.  73,  74 

ii.  38.  281 

ii.  115 

V.  Walker  101,  n.  137 

IValkley  and  Comer  or  Currer 

187,  ri. ;    ii.  2.  4.  13.  20.  46, 

46.  66 

Wall  V.  Bright  186 

V.  Stubbs  261 

Wallace  v.  Cook  451 
Waller  and  Doe  249 
V.  Hendon  104 


Wcdler  and  Hilary  338.  350.  470 

Waller  v.  Horsefall  242 

and  Pigott  177.  181 

Wallinger  v.  Hilbert  223.  295 

Wallis  and  Harwood  160 

Wallwyn  v.  Coutts  ii.  169 

V.  Lee           ii.  260.  303,  304 

and  Matthews  ii.  221 

Wohnsley  and  Clifton  157 
Walpole    (Lord)   v.    Earl    of 

Cholmondeley  152 

Walsh  V.  Whitcomb  45 1 

Walter  v.  Maunde  9.  344 

Walters  and  Baglehole  3l3 

V.  Morgan  II3 

V.  Pyman  224 

Walton  V.  Hobbs  ii.  30 1 

V.  Stamford  ii.  272 

Wanby  v.  Sawbridge  Hq 

Warburton  v.  Loveland  ii.  158 

2I2 

Warcup  and  Twyford  31 9 

and  Callaway  17i 


Ward  and  Casberd   512,  n.  ;  ii.  7q 

and  Douglasse  ii.  161.  172 

and  Garth  ii.  28 1 

V.  Garnons  532 

V.  Moore  179 

and  Newell  ii.  38 

and  Read  ii.  184 

and  Waring  188 

Warde  v.  Jeffery        427.  434.  443 

Wardell  and  Farmer  264 

Warring  v.  Hoggart  34.  36 

V.  Mackreth  332 

and  Reynolds  129 


INDEX    TO    CASES. 


]xiii 


Waring  v.  Ward 
Warlters  and  Wain 
Warne  and  Carter 
Warner's  case 
Warre  v.  Tyndale 
Warren  and  Dutch 

and  Hall 

and  Proctor 

V.  Richardson 

Warrick  v.  Warrick      ii.  279 
Warrington  and  Radcliffe 

424.  427 
Warwick  v.  Bruce 
Wase  and  Emery     197 


201.210 
ii. 


Washington  v.  Brymer 
Waterhouse  and  BuUer 

and  Cass 

Waters  and  Chambers 

and  Tayler 

Waterworth  and  Ripley 
Watkins  and  Allpass 

V.  Cheek 

V.  Hatchet 

V.  Maund 

Watt  V.  Grove 
Watts  V.  Creswell 

V.  Fullaiton 

and  Jenkinson 

V.  Kancy 

V.  Martin 

and  Prosser 

and  Shirley 

Watson  V.  Birch 

and  Gell 

and  Gill 

V.  Reid 

and  Smith 

V.  Upton 

Wayland  and  Wildgoose 
Weakley  v.  Bucknell 
Weal  V.  Lower 
Weare  and  Adams 

and  Jerritt 

Webb  V.  Bettel 

and  Kirk 

V.  Paternoster 

and  Potts 

and  Raymond 

V.  Rorke 

V.  Russell 


92 


Pawe 

188 
85 
62 
105 
70 
234 
.274 
147 
225 
297, 
335.  I 
432  I 
83 
199,  200. 
261.  274 
ii.  374  I 
ii.  179 
97.323 
ii.  Ill  ' 
79  j 
187! 
243  I 
ii.  39  I 
304,  n. 
ii.  189 
ii.  109 
ii.  262 
176 
17G.  178,  n. 
ii.  52 
69 
356 
ii.  199 
68 
ii.  18 
228,  322 
438 


Weildon  and  Farlow 
Weldon  and  How 
Welford  v.  Beazely      95, 

Welland  and  Balfour 
Wellesley  and  Wright 
Wells  and  Bally 
Welsh  and  Fowle 
Wenham  and  Kcnney      216 


West  V.  Vincent 
Westcoil  and  Beard  ii 

Westcott  and  Bradley 
Western  v.  Russell       85. 


n. 


Wedderburne  v.  Carr 


95 

226 

ii.276 

ii.  155 

194 

267 

ii.  84 

247 

ii.  137.  149 

80 

442 

64 

ii.  Ill 

ii.  78 

104 


427. 


461 


Pawe 

67 

ii.  260 

101  ;   ii. 

296 

ii.  36 

439 

ii.  78 

ii.  83 

284; 

ii.  9 

70 

355,  n. 

ii.  375 

93.  103. 

189,  n.  259.  301 

Westlake  and  Spiller  246 

Weston  V.  Berkeley  ii.  307 

Weston  and  Lyddal  351.354 

and  Noel  348.  450 

Whale  V.  Booth  ii.  54 

Whaley  v.  Bagenel  96.  115 

Whalley  v.  Whalley  ii.  266 

Wheate  and  Burgess  283 

V.  Hall  340 

Wheatley  v.  Slade  301 

Wheeler  v.  Bramah  52 

V.  Collier  28.  86 

V.  D'Esterre  116 

and  Harrington  428 

V.  Newton  99.  198 

and  Sir  William  Smhh  ii.  51 

and  Taylor  ii.  263 


Whelpdale  V.  Cookson  ii.  119.  124 
Whichcote  v.  Bramston  266 

V.  Lawrence  ii.  109.  115.  126 

Whichcott  and  Duckenfield  3 

Whitakre  v.  Whitakre  ii.  109 

Whitaker  and    Steed  ii.  279 

Whitbread  v.  Brockhurst  113.  115 
and  Savage  534 


Whitchurch  v.  Bevis  98.  112,  113, 

114,  115 
V.  Whitchurch         521,  522, 

523.  526 

224 

ii.  109 

451 

204 

49 

115,  116 
259,  260 

396 


Whitcomb  v.  Foley 

V.    Minchin 

and  Walsh 


White's  case 
White  V.  Bartlelt 

and  Cole  . 

V.  Damon 

V.  Ewer 


ixiv 


INDEX    TO    CASES. 


Page 

White  V.  Foljambo  336,  336.  367  ; 

ii.  24 

V.  Niitt 

V.  Proctor 


and  Parkes 

White  V.  Stringer  ii. 
and  Tomkins 


277 

106,  107 

ii.  109 

163.  177.  260 

293 

179 

67.  69 


White  V.  White 

AVhite  V.  Wilson 

Whitehouse  and  Hinde  90.  92,  93, 

94.  105.  102 


and 


Whitfield  V.  Fausset 
Whiting,    or    Edwards, 
Mollis 

and  Stone 

Whitley  and  Leman  ii 

Whitmel  v.  Farrel 
Whitmore  and  Skett  ii 

Whitmore's  case 
Whitrong  and  Douglas 
Whittaker  v.  Whittaker     180. 


ii.  265 

114 

79 

,  138 

214 
.  136 

187 
ib.- 

191. 

438 
Whitworth  (Lord)  and  Brookes 

229 

V.  Davis  171 

Whorwood  v.  Simpson      261.  428 
V.  Whorwood       ii.  151,  152, 

153 
Wickham  v.  Everest  226 

Widdrington  and  Christ's  Coll. 

ii.  301 
Wigg  V.  Wigg  ii.  274 

Wightman  and  King  290 

Wigles worth  and  Goore         ii.  269 
Wigzell  and  Francis  ii.  107 

Wilcocks  and  Coke  ii.  308 

V.  Wilcocks  ii.  151 

Wild  and  Henderson  ii.  62,  n. 

Wilde  V.  Fort  239.  341.  422. 

512,  n.  ;   ii.  10 

Wildgoosc  V.  Moore      ii.  243,  244 

V.  Wayland  ii.  276 

Wildigos  V.  Keeble  ii.  243 

Wilkenson  and  Lord  Salisbury 

ii.  14 
Wilker  v.  Bodington  479  ;  ii.  286 
Wilkes  and  Redding 
Wilkins  V.  Fry 

and  Jeanes 

and  Paul 


and  Stilwell 

Wilkinson  and  Hartley 


115 
39 
203 
172 
262 
HI 


Wilkinson      and  Lush 

and  Smith 

and  Wilmott 

Wilks  V.  Biscoe 

V.  Davis 

V.  Wilks 


Willan  V.  WiUan 
Willcox  V.  Bellaers 
W'illet  V.  Sanford 
Willett  V.  Clarke 
William  v.  Nevil 
Williams  v.  Attenborough 


and  Calverley 

Williams  v.  Carter 
Williams  v.  Chitty 

and  Cornwall 

V.  Craddock 

and  Cunningham 

V.  Edwards 

V.  Lambe 

V.  Llewellyn 

and  Macnamara 

V.  Millington 

V.  Protheroe 

and  Pyke 


Pago 

ii.  147 

ii.  135 

331.  368 

ii.  23 

276 

ii.  153 

205 

340 

179,  n. 

243.  430 

118.  131 

62.  67 

ii.  25 

208 

362,  363 

208 


324; 


Williams  and  Rea 

Willams  and  Reed 

and  Sangon 

r-  V.  Shaw 


548 

60 

302. 445 

ii.  309 

ii.  112 

230 

46 

562 

116 

ii.  127,  128  ; 

A  pp.  No.  23 

ii.  297 

194 

230 

and  Terry,  or  Ferry  240 

Williams  v.  Sorrell  ii.  220 

Willinms  v.  Thompson,  or  Bon- 
ham  440 
Williams  v.  Williams              ii.  308 

—  and  Wray  517 

and  Wynn  517  ;   ii.  39 

Williamson  v.  Curtis  ii.  33 

Willington  and  Mark  180 

Willis  V.  the  Commissioners  of 
Appeals  in  Prize  Causes 

ii.  14 

v.  Jernegan 

and  Portman 

V.  Willis 


Willock  and  Collyer 
and  Seward 


262 

ii.  201 
135.  138 
ii.  16 
247,  248.  432 
Willoughby  and  Fowler  174 

vl  Willoughby  466.  482. 

499.  511.   514.  517;    ii.  259. 
296 
Wills  V.  Stradling  116,  117 


INDEX    TO    CASES. 


Ixv 


Page 

Wilmot  V.  Wilkinson  331.  368 

V.  Derby  Canal  Company 

ii.    197 
Wilson  V.  Allen 
Wilson  V.  Bennet 
V.  Clapham 


11. 


Wilson  and  Clark 

and  CoUon 

and  Diiffell 

and  Fooid 

V.  Foreman 

V.  Hart 

and  Horford 

V.  Knubley 

and  Maitland 

Wilson  and  Lord  Middleton 
Wilson  and   Parks 
and  Radford 

V.  Rastall 

and  Thomson 

and  White 

V.  Wormol 

Wilsons  and  Hunter 
Wilton  (Lord)  and  Clayton 

ii.  164 
ii.  35 
46 
138.  321, 


6 

174 

ii.    10 

226 

369 

287 

ii.  9d 

ii.  149 

104 

53 

ii.  10-1 

ii.  305 

91 

215 

194,  195; 

ii.  307 

ii.  299 

79 

67.  69 

ii.  169.  199 

278,  n. 


Winter  r.  Lord  Jlnson 

Winter  v.  Blades 

V.  Brockwell 

and  Crockford 

V.  Devreux 

and  Leiffh 


Page 

ii.  57, 

58,  59 

ii.2 

79 

17 

198 

179 


ii. 


II. 


Wintcn  (Bishop  of)  and  St. 

John 
VVirdman  v.  Kent 
Wiseman's  case  ii 

Wiseman  v.  Beake 
Withers  v.  Pinchard 
Withers  and  Rex  ii 

V.  Withers  ii 

Withy  V.  Cotde         202.  216, 
Wiltenoon  and  Crespigny      ii 


Wiltshire  and  Doran 

V.  Sims 

Winch  V.  Winchester 

322  ;   ii.  24 
Winchelsea  (Earl  of)  and  Finch 

539 
Winchester  (Bishop  of)  v.  j 

Fournier  ii.  298' 

(Bishop  of)  V.  Paine       ii.  25. 

281 

and  Winch       138.  321,  322  ; 

ii.  24 
Windsor  (Lord)  and  Earl  of 

Pomfret  394 

(Lord)  and  Story         ii.  274. 

304,  305,  306 

Winford  and  Lutwych         57 

Wing  V.  Earle  326 

Winged  v.  Lefebury  172.  213  ; 

ii.  269 
Winsmore  and  Lichden  460 

Winstanley  and  Attorney- Ge- 
neral 15 

and  Blankley  157 

and  Verner  255.  262 

Vol..  I.  H 


175 

300 

158 

265 

198 

299 

135 

223 

ii.  327 

ii.  261 

32 

266.  273 

ii.  131 

289.  4.35 

250.  444 

ii.  17 

121.  126 

251.  302. 

662 

428 

79.  81 

ii.  131 

ii.  66 

Woodford  and  Thcllusson  181 

Woodo'nte  v.  JVoodo-ale     ii.  31,  n. 


Wolf  and  Burgh 
j  Womack  and  Bennett 
!  Wood  V.  Abrey 
,  Wood  V.  Birch 

Wood  V.  Bernal 

\ and  Boehm       223 

and  De  Bernales 


V.  Downes 

Wood  V.  Griffith 

Wood  and  Green 

V.  Lake 

V.  Norman 

V.  Pollard 


II. 


173. 


Woodhouse  and  Harvy 

V.  Jenkins 

V.  Meredith 


ii.  259 
ii.  89 

ii.  109 
245 
161 
144 
245 
188 


and  Smith 

Woodie's  case  ii 

Woodman  v.  Morrell     ii.  142 
Woodrow  and  Clazebrook 
Woods  V.  Huntingford 
Woollam  V.  Hearn  136,  137 

Woollaston  and  Collet  259 

Worcester  (Bishop  of)  v. 

Parker  ii.  259 

Wordsworth   and    Nicloson  218  ; 

ii.  51 
Woiley  and  Hamilton  188 

Wormol  and  Wilson     Ji.  169.  199 
Worms  and  Granger    *  35 

Worrall  v.  .Jacob  ii.  168 


Ixvi 


INDEX    TO    CASES. 


Worsley  and  Cavendish 

and  Hill 

and  Norcliffe 


Page 
194 
281 
194 


V.  Earl   of  Scarborough 

ii.  280,  281.  283,  234 

Worthy  and  Duke  of  Norfolk  34, 

42.  49.  53.  234.  309.  322 

Wortley  v.  Birkhead  ii.  284 

Wray  v.  Steel  ii.  140 

V.  Williams  617 

Wrenham  and  Kenney  ii.  9 

Wren  V.  Kirton       30.  62;  ii.  115 
Wright  ex  parte  ii.  264 

V.  Bond  222 

and  Browning  162  ;  ii.  81.  94 

and  Birch  252 

Wright  and  Burdeil  492 

Wright  and  Clerk  90.  115 

V.  Dannah  107 

and  Fox  272 

and  Freme  368 

and  Harrison  215 

V.  Howard  429 

V.  Mayor  ii.  299 

and  Needier  ii.  267 

and  Parry  ii.  268 

and  Quaintrell  152 

and  Shaw  348 

V.  Wellesley  439 

Wrightson  v.  Hudson  ii.  220 

Wrigley  and  Andrew  ii.  52,  53.  55, 
56.  275 
Wroot  and  Doe 
Wroughton  and  Hyde 
Wyatt  V.  Men        46 


V.  Burwell 

and  Roberts 

and  Rondeau 

Wynn  v.  Morgan 

V.  Williams 

Wynne  v.  Griffith 
V.  Thomas 


469 

224 

104.   App. 

No.  9 

ii.  223 

40.  449 

105.  113 

430  ;   ii.  26 

617;  ii.  39 

229 

451 


Page 

Yallop  and  Douglas  552 
Yardly  and  Drapers  Com- 
pany                                ii.  293 
Yarworth  and  Nourse                 626 
Yates  V.  Farebrother  48 
Yea  V.  Field                                 531 
Yeavely  v.  Yeavely                ii.  281 
Yems  V.  Smith                        ii.  331 
Yielding  and    Harnett    202.  204, 
205.  209.  306 
York  V.  Eaton                        ii.  127 
York  B.   Company  v.  Mac- 
kenzie  ii.  109,  110.  115.  122, 
123.  126 
B.  Company  and  Hig- 


gms 
Young  and  Berry 

V.  Clerk 


38. 

426 

6.  205 


Young  and  Crosse 
Young  V.  Duncombe 
and  Fountain 


Young  and  Harvey 
Young  and  Kingsley 
Young  V.  Radford 
V.  Younsf 


Wyvill  V.  Bishop  of  Exeter      280 


Year  Books. 

14  E.  pi.  8 

30  E.  324  a. 
42  E.  3.  11  a. 

47  E.  3.  18  a.  pi.  35 

31  Ass.  pi.  6 

38  Ass.  pi.  4 
42  Ass.  pi.  17 

2  H.  4.  8  b.  pi.  42 
14  a.  pi.  5 

39  H.  6.  35 
2  E.  4.  p!.  11 
7  E.  4.  14.  b. 

26  H.  8.  T.  pi.  11 

Z. 


543 

47.   419. 

529.  531 

259,  260 

ii.  82,  83 

226 

ii.  299 

3 

342 

463 

162 


253,  n. 

547 

ib. 

326 

j    ii.  199 

ib. 

647 

ib. 

ib. 

ii.  201,  n.       I 


253,  n. 

197 

ii.  83 


Yallop,  ex  parte 


Zagury  v.  F  urn  ell  278 

ii.  264    Zouch  v.  Swaine  ii.  104 


TABLE    OF    STATUTES. 


Ixvii 


TABLE   OF    STATUTES   CITED. 


EDWARD  I. 

13.  c.  19.  Administration      ii.  201 
33.  Measures  324 

EDWARD  III. 

4.  c.  7.  Executors         ii.  201,  n. 

31.  c.  11.  Administration      ii.  202 

HENRY  VII. 

11.  c.  20.  Husband  and  Wife  381 

HENRY  VIII. 

21.  c.  6.  Administration        ii.  202 
24.  c.  4.  Measures  324 

27.  c.  10.  s.  3.  Merger  464 

32.  c.  2.  Limitation  of  Time  329. 

388,  389.  392,  393 
c.  9.   Sale  of  pretended 

Titles  660 

c.  34.  Covenants  ii.  77.  n. 

ii.  78.  n. 

ELIZABETH. 

13.  c.  5.   Fraudulent  Convey- 
ances.    Creditors     ii. 
146 
c.  4,  Crown  debtors 
c.  7.  Bankruptcy 
27.  c.  4.    1  Fraudulent 


30.  c.  18.  \  Conveyances. 

s.  3.  j  Purchasers. 
43.  *c.  4.  Charity 

c.  8.  Administration 


612,  n. 
ii.  183 
ii.  146 
ii.  1.56 
ii.  156 
ii.  182 
ii.  202 


CHARLES  IL 


Page 


22  &  23.  c.  10.  Distribution  ii.  202 

29  c.  3,  s.  1.  Leases  74.  103 

s.  2.  Leases  ib.      ib. 

s.  3.  Grants  ib.      ib. 

s.   4.    Parol   Argree- 

ments  ib.     ib. 

s.  7.   Declaration  of 

Trusts  ii.  132 

s.  8.  Resulting  Trusts 

ii.  135 
s.  14,  15.  Judgments 

ii.  192.  195 
s.  16.  Execution        ii.  198 
s.   17.    Parol  Agree- 
ments 90.  104 
s.  18.  Recognizances 

ii.  203 
s.  26.  Distribution     ii.  202 

WILLIAM  and  MARY. 

3.  c.  14.  Devises  ii.  104 

4  &  6.  c.  20  Judgments 

ii.  193.  195 

WILLIAM  III. 

7  &  8  c.  36.  s.  3.  Judgments 

ii.  193 
11   &   12.   c.  4.     Papist  pur- 
chasers ii.  108.  241,  242.  244 

JAMES  I. 

21.  c.  16.   Limitation  of  Time 

329.  388.  392,  393.. 418,  n. 


Ixviii 


TABLE    OF    STATUTKS. 


Page  j 

21.  c.    19.   s.   9.  Judgments 

against  Bankrupts       ii.  196  ' 
c.  19.   Bankrupts     ii.  75.  146 
s.  14.      Purchasers 
from  Bankrupts 

ii.  184.  191 
c.  24.   Debtors  dying  in 

Execution  ii.  197 

ANNE. 

2  &  3.  c.  4.  Registry  ii.  204 

5  C.18.  s.  11.    )   y..      i  551;  ii.  204 

6.  C.35.  s.  28.  )  '^'"''  \  .551;  ii.  204 

7.  c.  19.  Infant  Trustees  192 

c.  20.  Registry     ii.  204.  209, 
210 

GEORGE  I. 

3.  c.  18.  Papist  Vendors   ■  ii.  241, 
242.  244 

8.  c.  25.  s.  6.  Judgments     ii.  193 

9.  c.  7.  s.  4.  Churchwardens  ii.  106 

GEORGE  II. 

7.  c.  20.   Ejectments  252 

8,  c.  6.  s.  33.  Registry        551  ;  ii. 

204 
14  c.  20.  s.  4.  Recoveries     ii.  245 

GEORGE  III. 

17.   c.   26.     Life   Annuities,  App. 

No.  13 

17.  c.  50.  s.  8. 


>   I   < 


3 


19.  c.  66.  s.  11. 

s.  12. 

s.  13. 

s.  14. 

s.  15.J  L 

25  0.  36.  Extents 

27.  c.  13.  s.  36.  1        =        r       13 

28.  c.  37.  s.    19.    y      I      V        23 

s.  20.  J       I        I       18 

29  c.  36.   s.   4.   Papist   Ven- 
dors, ii.  241 
31  c.  32.  Papists                   ii.  108 


I'aL'c 
37.  c.  14.  1    ^    r  13 

41.  c.  109.  s.  2.  I    g    I      ii.  110,  n. 

42.  c.    93.   s.  1.  ys  ^  18 

s.  2.  I    =    I  19 

c.  116.  s.   113.J  "^    L  13 

43.  c.  30.  Papists  ii.  108.  243 

45.  0.  30.  Auctions  13 

46.  c.  135.     Purchasers  from 

Bankrupts  ii.  185.  190 

47.  c.  74.  Debts  of  Traders    ii.  32 
49.    c.    121.  s.  2.    Purchasers 

from  Bankrupts  ii.  185 
188.  190. 

53.  c.    141.   Life  Annuities,   App. 

No.  13 

54.  c.  173.  s.  12.   Defects   in 

Sales  for  Land-Tax  ii.  249 

55.  c.  184.  Appraisement  54 
55.  c.  192.  Disposition  of  Co- 
pyholds by  Will    183 

67.  c.  100.  s.  22.     Defects  in 
Sales  for 
Land-Tax  ii.  251 
s.  23  ii.  263 

s.  24  ii.  254 

s.  26  ii.  255 

s.  26  ii.  256 

GEORGE  IV. 

1  &  2.  c.  121,  s.   10.  Protec- 
tion from  Crown  Debts  ii.  257 
3.  c.  92.  Life  Annuities         ii.  333 
6.  c.  74.  s.  1.    -^  r  326 

'V    >■  Measures-^      ., 
s.  15.  [  ]      lb. 

6.  c.  12.  s.  23.  J  t     ib. 

c.  16.  s.  4.     1    Purchases 

;  from  Bank- 

s.  73.  j  rupts. 

s.  75.  Leases  in  Bank- 


1  ( ii.  146 
<  ii.  184 
(  ii.  191 


rupts 
s.  76.  ^ 
s.  81. 

s.  83. 


r 


a 


s.  86. 
s.  86. 

s.  87. 
s.  98.  _ 


a   2 


52 

172 

ii.  189 

ii.  190 

289 

ib.  ib. 

ib.  ib. 

ii.  191 

15 


TABLE    Ol-    STATUTES. 


Ixix 


Page 

\  Judgments  i 
6.C.16.S.108.  J.     against     '  ii.  196 
j  Bankrupts   ( 
c.  74.  Intant  Trusts  192 

9.  c.  35.   Judgments  in  Ire- 

land 539 

10.  c.  7.  s.  23.  Papists  ii.  108.  244 

WILLIAM  IV. 

1.  c.  36.  s.  15.   R.    15.    Con- 
tempts 194,  n. 
c.  47.  Payments  of  Debts 
out  of  Real  Estate, 

ii.  32.  104 
c.  60.  Trustees  and  Mort- 
gagees 192,  193.  350 
c.  65.  s.  7.  Infants,  &c.        201 
1    &   2.    c.    56.      Bankruptcy 

Court  ii.  189.  247 


2  &  3.   c.  71.    Time  of  Pre- 

scription 412  to  415 

c.  100.  Tithes  415  to  418 

3  &  4.  c.  27,      Limitation   of 

Actions  329,  330.  397 

to  412 
c.  42.     Amendment  of  the 

Law  276.  418  ;   ii.  20 

c.  47.  Bankruptcy  Court  ii.  189 
3  &  4.  c.  74.    Fines  and  Re- 
coveries        193,  194.  196. 
356.  359.  364. 
380  to  386  ;   ii. 
103.    246,  247, 
248.  269.  305,  n. 
c.  94.  Chancery  Practice  66.  59 
c.  104.        Simple  Contract 

Debts  ii.  104 

c.  105.  Dower        196.  359  364 

to  367  ;  ii.  168 

c.  106.  Inheritance    370  to  375 


INDEX 


AMERICAN    CASES 


CITED  IN  THE  NOTES. 


9iiee. 


Page 

ABBOT  V.  Allen       i.  279.  370. 

629 

V.   Sebor  ii.   345 

105.  149 

i.  461 

i.  434 

i.  386 

ii.   345 


Abeel  v.  Radcliff  i. 

Adamson  v.  Smith 
Adsit  V.  Adsit 
Alden  V.  Murdock 
Alexander  v.  Emerson 

V.  Pendleton    ii. 

Allen  V.  Bennet 


314. 
i 


V.  Lyon  i. 

V.  Prior  i 

Alston  V.  Jones  ii. 

Ambler  v.  Norton         i.   187. 
Anderton  v.  Roberts 
Andrews  v.  Solomon 
Anonymous  i.  461 

Applebury  v.  Anthony 
Arden  v.  Arden 
Argenbright  v.  Campbell 

132.   196.    199.  315 
Arms  V.  Ashley  ii.   155 

Armstrong  v.  Hickman  i.  190.  249 
Askew  V.  Poyas  i.  275 

Astor  V.  Wells       ii.  199  302.  320 
Austin  V.  Hall  i.  314 

Avery  v.  Kappel  i.  195 


ii.  185. 
ii. 
ii. 
ii. 
ii. 
i. 


325 

99 

181 

98 

345 

434 

259 

346 

185 

300 

467 

117. 


B. 

Backhouse  v.  Crosby 
Bailey  V.  Ogdens 


i.  99 
i.  118 


Page 

Bailey  v.  Snyder  i.  389 

Baker  v.  Arnold  ii.  347 

V.   Glascock  i.   157 

V.  Seekright  i.  82 

Ballard  v.  Walker  i.  100.  116.  159 
Bank  of  Columbia  v.  Patterson 

ii.  240 
Niagara  v.  M'Cracken  ii.  304 


Baptist  Association  v.  Hart  i.  213 


Barber  v.  Brace 
Barksdale  v.  Brown 
BarndoUar  v.  Tate 
Barrell  v.  Joy 
Barrett  v.  Barrett 
Barstow  v.  Gray 
V.  Kilvington 


Bartlett  v.  Pickersgill 

Barton  v.  Rushton 

Barruso  v.  Madan 

Bassler  v.  Niesly 

Bateman  v.  Philips 

Battin  v.  Bigelow 

Batty  V.  Carswell 

Baxter  v.  Smith 

Bayard  v.  HofTman 

Bearce  v.  Jackson 

Beatty  v.  Smith 

Beaty  v.  Beaty 

Bebeev.  Bank  of  New- York  ii.314 

Belden  v.  Carter  i.  314 

V.  Seymour       ii.  356.  357 

Bell  V.  Andrews  i.  134.  140.  146. 

156 


172 
51 
189 
155 
157 
100 
i.  193 
ii.  318 
i.  213 
i.  292 
136.  138 
i.  99 
i.  523 
i.  50 
ii.  121 
ii.  190 
ii.  94 
ii.  348 
i.  118 


JNDEX    TO    AMERICAN    CASES. 


Ixxi 


Benedict  v.  Beebe  i.  96 

V.  Lynch,         i.  156.  252. 

491.  497,498.  516.  ii.  305 
Benezet  v.  M'Clenachan  i.  183 
Bennett  v.  Irwin 

V.  Pixley 

Bergen  v.  Bennett 
Berry  v.  Mutual  Ins.  Co, 


Bethune  v.  Beresford 
Beverley  v.  Lawson 
Bickford  v.  Page 
Bilbie  V.  Lumley 
Bingham  v.  Bingham 
Bize  V.  Dicliason 
Billington  v.  Welsh 


Blair  V.  Hardin 
V.  Owles 


Bliss  V.  Thompson 
Boar  V.  M'Cormick 
Bostvvick  V.  lieach 
V.  Lewis 


n.  90 

i.  292 

ii.  143 

li.  251. 

254.  303.  337 

i.  240 

263.  411 

ii.  90 

i.  308 

i.  308 

i.  308 

133.  135. 

138.  ii.  320. 

ii.  106 

ii.  254.  313.  320 

.    345 

i.  98.  ii.  257 

i.  384 

i.  98 

i.  369.  372 

i.  164.  176.  ii. 


1. 


Botsford  V.  Burr 

149.  152,  153,  154.  162,  163, 
164.  176.  318 

V.  Morehouse       i.  176. 

289 


Bowen  v.  Bell 
Bowers  v.  Hurd 
Bowman  v.  Bates 
Boyd  V.  Dunlap 

V.  Graves 

V.  M'Lean    i. 


i.  156.  ii.  357 

i.  171 

i.  249.  320 

ii.   185 

i.   98 

193  :   ii.    149. 


152,  153,  1,54.  156 

V.   Stone  i.  138.   145 

Boykin  v.  Smith  i.   127 

Boyle  V,  Rowand  i.  350.   ii.  8 

Boynton  v.  Hubbard  i.  324 

Bradish  v.  Gibbs      i.  240  ;   ii.  190 
Bradshaw  v.  Bennet  i.  288 

Brady  v.  Waldron  i.   262 

Bright  v.  Haggin  ii.   347 

Brinckcrhofl' v.   Lansing       ii.  300 
Brinkerhoff  v.   Marvin  ii.  251 

Brisbane  v.  Dacres  i.  308 

Brodie  v.   Scagroves  i.  31 

Broome  v.  Beers  ii.  300 

Brown  v.  Bellows  i.  298 

v.  Galloway  i.  541 

■ 1 V.  Gilliland  i.  122 


Page 

Brown  v,  Gilman         ii.  65,  66.  83 

v.  Moorhead  ii.  301 

V.  Rickets  ii.  141 

Bruch  V.  Lantz  ii.    173 

Bruce  V.  Barber  i.  172 

Bryan  v.  Hinman  i.  464 

Buck  V.  Halloway  ii.  323 

Bulkley  v.  Storer  i.  34 

Bullard  v.  Briggs         ii.   159.  357 

Bumpus  v.  Platner        i.  370.  635  ; 

ii.  199.  314 

I  Bunbury  v.  Winter  ii.  22 

Bunce  v.  Wolcott  i.  461 

I  Ourch  V.   Hurst  i.  323 

Bunnel  v.  Taintor  i.   97 

Burgen  v.  Bennet  ii.  128 

Burke  v.  Young  i.  220.  222 

Burkett  v.  Randall  i.    154 

Burnet  v.  Denniston  i.   31 

Bush  V.  Bradley  i.  461 

Butler  V.  Haskell         i.  318.  322, 

323,  324,  325  ;  ii.  123 

V.   O'Hear         i.   253.  355. 

410,  498  ;  ii.  28 
Butts  V.   Chinn  ii.  325 


Cady  V.  Cadwell  i.   134 

Caines  v.  Grant  ii.   144 

Cadwell  v.  Myers  i.  246 

Calquhoun  v.  Atkinsons  ii.  251 
Campbell  v.  Ketcham  i.  246 

V.  Spencer  i.  247 

Cannon  v.  Mitchell  i,  34 

Capcl  v.  Bull  ii.  88 

Carberry  v.  Tannehill  i.  246 

Carkhuff  v.  Anderson  ii.  615 

Carnes  v.  Smith  ii.   196 

Carter  v.  Campbell  i.  382.  389 
Casack  v.  Descoudres  i.  100.  102 
Cassell.  v.  Cooke  i.  302 

Cassamajor  v.  Strode  i.  365 

Caswell  v.  Black  River  Manu- 

'Tacturing  Co.  i.   629 

Chamberlain  v.  Gorham  ii.  304 
Champion  v.  Brown     i.  220.  248  ; 

ii.  307 
Chapel  V.  Bull  i.  315 

Chapman  v.   Allen  i.   186 

Chappel  V.  Avery  i.    195 

Chesterman  v.  Gardner        i.  370  ; 
ii.  323 


INDEX    TO    AMERICAN    CASES. 


Chickeiin  v.  Lovcjoy  i.   65 

Chin  V.  lleale  i.  366 

Christ  V.   Difteback     i.  166.    190. 

207 
Church  V.  Church  i.  166 
Clark  V.  Giflord  i.  314 
V.  Hackwell                    i.    155 

V.  Henry  i.   196 

V.  Redman  i.   422 

V.  VanReimsdyk         ii-   348 

Clarke  v.  Grant  i.  165 

Clason  V.  Bailey   i.   100.  110.  117 

V.  Morris  ii.  348 

Clay  V.  Williams  ii.  346 

Cleaves  v.  Foss  i.  58.  101.  124 
Clementson  v.  Williams  i.  138 
Clifton  V.  Haig  ii.  119 

Clinan  v.  Cooke  i.  192 

Clithorall  v.  Ogilvie       i.  245.  247. 

321,  322 
Clute  V.  Robison  i.  503.  628. 

ii.  253.  304 
Codwise  V.  Gelston  i.  616 

Cogdell  V.  Cogdell  i.  220.  222 
Colcock  V.  Butler  i.  498 

V.  Garvie  ii.  240 

Cole  V.  Hawes  ii.  104.  110 

V.  Scott  ii.  62.  65.  82 

V.  Wendell  i.  181 

Colhoun  V.  Snyder  i.  621 

Collins  V.  Gibbs  i.  299 

Coleman  v.  Upcot  i.  99 

Colquhoun  v.  Atkinsons  ii.  251 
Colson  V.  Thompson    i.  105.  149. 

244, 245 
Commonwealth  v.  Wolbert  i.  627 
Comstock  V.  Hadlyme  i.  194,  195 
Connecticut  v.  Bradish  ii.  256 

V.  Jackson  ii.  12 

Connelly  v.  Childes  ii.   345 

V.  Pierce  i.  293 

Conway  v.  Alexander  i.  312 

Cook  V.  Darby  ii.  469 

V.  Preston  i.  166 

V.  Stearns  i.  Vl 

Corbin  v.  Waller  ii.  136 

Correy  v.  Caxton  ii.  243 

Cortelyou  v.  Van  Brundt      i.  188, 

189 
Cortes  V.  Billings  ii.  345 

Cosack  V.  Descoudres  i.  100 

Cotton  V.  Lee  i.  99 


Pase 

Coutts  V.  Craig  i.  182 

Covert  V.  Irwin  ii.  316 

Cox  V.  Fenwick  ii.  63.  65.  67 

V.  Grant  ii.  152 

Craig  V.  Leslie     i.  229.  ii.  65.  119 

V.  Radford  ii.  119 

Crane  v.  Deming  i.  326 

Crawford  v.  Morrell  i.  98 

Creacraft  v.  Wions  i.  434 

Crocker  v.  Higgins  i.  138 

Croome  v.  Lediard  i.  165.  355 

Crosby  v.  Parker  i.  386 

Crotzer  v.  Russell  ii.  301 

Cuff  v.  Penn  i.  1.58 

Cunningham  v.  Morrell  i.  292 

Curkhuffv.  Anderson  i.  615 

Currens  v.  Hart         i.  616   ii.  316 
Gushing  V.  Hurd  ii.  260.  337 

Cuyler  v.  Bradt  ii.  307.  340 


D. 


Dabney  v.  Green  i.  187 

Dalby  V.  Pullen  i.  355 

Dando  v.  Tremper  i.  289 

Dandridge  v.  Harris  i.  133 

Davenport  v.  Mason  i.  135 

144,  145.  155 
Davis  V.  Lyman  ii.  90 

V.  Rainsford  i.  384 

V.  Robertson     i.  58.  110.  124 

Davison  v.  Waite  ii.  307 


Davoue  v.  Fanning  ii.  123.  125. 
129,  130.  137 
Dawes  v.  Boylston  ii.  174 
Dayne  v.  King  i.  298.  384 
Dearborn  v.  Cross  i.  159 
V.  Dearborn           i.  626 


Decouche  v.  Savetier     i.  466.  467 
De  Long  v.  Stanton  i.  187 

Demarest  V.  Wynkoop  i.  239.  461, 
462.  468.  471.  ii.  29.  313 
Den  V.  Despereaux  i.  65 

V.  Hill  i.  616 

V.  M'Knight  ii.  126 

V.  Mulford  i.  461 

V.  Wright  i.  65.  ii.  126 

Denniston  v.  Morris  i.  370 

Denton  V.  M'Kenzie  i.   102 

D'Utricht  v.  Melchor  i.  349 

Dey  V.  Dunham  ii.  187:  211.  254. 
260.  335 


INDEX    TO    AMERICAN    CASES. 


Ixxiii 


Dibble  v.  Hulton 
Dickerson  v.  Dickerson  i 
Dilwoith  V.  Siriderliiig 
Dimond  v.  Enoch 
Dixon  V.  Swiggett 
Doe  V.  Campbell 

V.  Horniblea 

V.  Phelps 

Dolin  V.  Coltman 
Donaldson  v.  M'Roy 
Doolin  V.  Ward 
Doolittle  V.  Blakesley    i. 
Dorsey  v.  Jackman        i. 
Douglass  V.  Spears 
Dow  V.  Warren 
Dowdall  V.  Lenox 
Downey  v.  Hotchkiss     i 

Downing  v.  Brown 
Duke  of  Cumberland   v. 

ton 
Dunbar  v.  Jumper 
Duncan  v.  Duncan 

V.  Forrer 

Dunham  v.  Baker 

V.  Dey 

Dunlop  V.  Speer 
Dupree  v.  M'Donald     i. 
166.  183. 
Dusenbury  v.  Ellis 
Duvall  V    Bibb  i 

V.  Craig  i 

Dwight  V.  Pomeroy      i. 


Dyer  v.  Lewis 


Pai;c 

i.  239 
.  170.  174 
ii.  140 
i.  181 
i.  156 
i.  542 
ii.  119 
i.  542 
ii.    161 
i.   23 
i.  31 
182.  464 
279.  639 
i.  100 
i.  461 
ii.  22 
,  86.  135, 
136 
i.  48 
Codring- 
i.  230 
ii.   91 
i.  183 
ii.  145 
i.  157 
ii.  319 
i.  206 
157.  161. 
191.  198 
i.  60 
i.  67.  295 
59.  ii.  94 
157.  161. 
162.  174 
i.  378 


E. 


Eager  v.  The  Commonwealth 

i.  461 
Eagle  Fire  Insurance  Company  v. 


Cammet 
Eastburn  v.  Kirk 
Ebert  v.  Wood 
Edwards  v.  Haudley 
Edwin  V.  Saunders 
Egerton  v.  Matthews 
Eichelberger  v.  Barnitz 
Eliason  v.  Henshaw 
Ellis  V.  Deadman 

V.  Hoskins 

Ellsworth  V.  Buckmycr 
Klinendorf  v.  Carinichae' 
vox,.    I. 


1.  65 

ii.  28 

i.  135 

i.  247 

i.  159 

i.  99 

i.  320 

i.  103 

i.  105 

i.  629 

i.  181 

ii.  120 

I 


Elmore  v.  Austin 
Ely  V.  Adams 
Erskine  v.  Townsend 
Evans  v.  Jones 
Evertson  v.  Tappen 
Ewing  V.  Smith 

V.  Tees 

Ex  -parte  Minet 

Gardom 

Wragg 


Page 

i.  166 

i.  181 

i.  311 

ii.  251 

ii.  125 

i.  239 

121.  134 

i.  99 

i.  ib. 

ii.  73 


F. 

Fairfax  v.  Hunter 

V.  Muse 

Farnsworth  v.  Childs    ii, 
Farrer  v.  Ayres  i. 

Fasholt  V.  Reed 
Faysoux  v.  Prather 
Fay  V.  Hunt 
Feme  v.  Bullock 
Field  V.  Holland 
Finley  v.  Williams 
Fischill  V.  Dumaresly 
Fisher  v.   Kay 
Fitch  V.  Fitch 
Fitzhugh  V.  Runyon       i. 
Fitzpatrick  v.  Smith 
Fitzsimmons  v.  Ogden 
Fleet  V.  Hawkins 
Fleming  v.   Gilbert       i. 
Flemings  v.  Willis 
Fletcher  v.  Peck  ii. 

V.  Toilet 

Flint  V.  Sheldon      i.  196 


254. 
195. 

ii. 
i. 

ii. 

i. 

i. 

i. 


11.  119 

i.  74 

335 

197 

324 

461 

120 

156 

641 

541 

i.   98 

i.  253 

i.  324 

157.  170 

i.  208 

ii,  295 

i.  384 

159.  174 

i.   157 

199.  259 

i.  307 

ii.   159 


Foillard  v.  Wallace 
Foote  V.  Calvin     ii. 
Foster  v.  Briggs 
Ford  V.  Herron 
Forster  v.  Fuller 
Fowle  V.   Freeman 
Fowler  v.  Lewis 
Fox  V.  Longly 

V.  Southack 

Francis  v.  Hazlerig  i. 


11.   94 
152,  153,  154 
i.   65 
i.  74 
i.  69 
i.   99 
i.   128.  132 
i.    135,  136 
ii.   119 
182  ;'  ii.  65 
Frankfort  Bank  v.  Anderson  ii.  240 


II 


Franklin  v.  Osgood 
Frcar  v.   Hardenburgh 
Frederick  v.  Campbell 
Freoport  v.  Bartol 
Friedly  v.  Scheetz 
Frost  V.  Bcekman  ii.  199.  254,  255. 
307.  313 


133 

i.   96 

ii.  301 

i.   96 

i.  68 


Ixxiv 


INDEX    TO    AMERICAN    CASES. 


Page 

Frost  V.  Raymond  i-  629 

Fuhrman  V.  London  i.  210 

Fuller  V.  Hubbard  i.  292.  297 

Fulweiler  v.  Baugher  i.  276.  281 

Furman  v.  Haskin  ii.  304 

G. 


Gardner  v.  Gardner 
Garner  V.  Garner 
Garson  v.  Green 

Gasley  v.  Price 
Gay  V.  Hunt 
Geer  v.  Winds 
German  v.  Gabbold 


ii.  86 

i.  591 

ii.  62.  65,  66, 

67.  69,  70.  74 

i.  192 

i.  187 

i.  190 

152.  163. 

318 

Gerrish  V.  Washburn  i.   158 

Getman  v.  Beardsley  i.l91  ;  ii.  28 

Gilbert  v.  Bulkley  i.   289 

Gillespie  v.  Moon        i.   164.  166. 

189.  191  ;   ii.  305 

Gillet  V.  Maynard        i.   140.  279. 

349.  629 

Gilman  v.  Brown  ii.   62 

Gilpins  V.  Consequa  i.    172 

Gist  V.  Cattell  ii.  466 

Givens  V.  Calder  i.   105.  114. 

119.  132.  135,  136.   149 

Glaze  V.  Drayton 

Glen  V.  Glen 

Glover  V.   Smith 

Goddard  v.  Bulow 

V.  Bolster  et  al 

Goodenow  v.  Tyler 
Goodrich  v.  Pendleton 
Goodtitle  V.  Edmonds 

-: V.  Morgan 

Goodwin  v.  Gilbert 

• V.  Hubbard 

Gore  V.  Stackpole 
Goss  V.  Lord  Nugent 
Gouveneur  v.  Elmendorf 


Graham  v.  Bickham 
Groham  v.  Hendren 
Grant  v.  Craigmiles 

V.  Duane 

V.  Hook 

V.  Naylor 

Grantland  v.  Wight 


i.  234 

i.  390 

i.  383 

i.   181 

i.  42 

i.  61 

ii.  256 

i.  195 

i.  636 

i.   98 

ii.   169 

i.  65 

i.   168 

i.  370. 

629 

i.   260 

i.  368 

132.  153 

i.  469 

ii.  173 

i.  138 

i.  323.  384. 

610 


I. 


Gray  v.  Handkinson 
V.  Holdship 


Page 

i.  384 

i.  41 

Green  v.  Price  ii.  300 

-  V.  Reynolds  i.  292,  293.  297 

-  V.  Slayter  ii.  260.  323.   335 

-  V.  Winter   ii.  123.  125.  140 


Greenby  v.  Wilcocks  ii.  89.  92.  94 
Greenhow  v.  Coutts  ii.  190 
Greenwalt  v.  Born  i.  353.  358 
Gregor  v.  Duncan  i.  319.  321,  322 
Gregory  v.  Setter  ii.  156 
Gridley  v.  Andrews  ii.  80 
Griffith  V.  Depew  ii.  63 
Grisold  V.  Butler  i.  461 
V.  Messenger             ii.  365 


H. 

Hall  V.  Vandegrift  i. 

Hamilton  v.  Cawood     i. 


V.  Cutts 
V.  Jones 
V.  M'Guire 
V.  Wilson 


Hampson  v.  Edelen       ii. 
Hampton  v.  Speckenagle 
Hannay  v.  Eve 
Hardin  v.  Kretsinger 
Harrington  v.  Brown 
Harris  v.  Bell 

V.  Dinkins  i. 

V.  Knickerbacker 

Harrison  v.  M'Mennorny 

V.  Sampson 

Hart  V.  Porter 

V.  Reeves 

V.  Ten  Eyck 


Harvey  v.  Alexander 
Hasbrouck  v.  Patten 
V.  Tappen 


Hastings  v.  Dickenson 
Hatch  V.  Cobb       i.  244. 

V.  Dwight 

V.  Hatch      i.  182. 

Hatcher  v.  ilatcher 
Hatton  V.  Gray 
Haven  v.  Foster 
Hawkins  V.  Hawkins     i. 
iHawley  v.  Mancius 
'Hawn  V.  Norris 


461.  466 
167.  181, 

182,  183 
ii.  94 

i.  145 
i.  156 
ii.  89 
a23,  324 
i.  296 
i.  247 
i.  192 
ii.  126 
i.  221 

183.  186 
i.  138 

ii.  155 

ii.  88 

i.  302 

i.  615 

348,  349 

i.  156 

i.  96 

96.  174. 

260 

i.  434 

276.  498 

i.  386 

289.  313 

ii.  63.  65 

i.  99 

i.  309 

172.  208 

ii.  125 

i.  642 


INDEX    TO    AMERICAN    CASES. 


Ixxv 


Hayden  v.  Stoughton 
Hays  &  al.  v.  Jackson 
Heatly  v.  Finster 
Heffner  v.  Miller 
Heister  v.  Fortner 
Helm  V.  Small 
Henderson  v.  Hudson 


Page  j  , 

i.  295    Hughes  v.  Worley 
ii.  86  j  Hull  V.  Cunningham 
Hundley  v.  Lyons 
Hunt  V.  Adams 

V.  Livermore 

V.  Rousmanier 

V.  Warnicke 


u.  323 
ii.  347 
ii.  254.  317 
i.  182 
i.  97;  ii. 
149 
ii.  251 
ii.  211 
ii.  254 


Hendricks  v.  Robinson 

Henriques  v.  Hone 

Henry  v.  Morgan 

Hepburn  v.  Auld  i.  134.  244.  253. 

276.  353.  355.  366  497.  500.  503 

V.  Dunlop       i.  244.  248. 

253.  500.  503  ;  ii.  4 


Page 
ii.  261 
i.  384 
ii.  3 
i.  181 
i.  298 
i.  197.  308 
ii.  119 
i.  626 
i.  616 


Herbert  v.  Wren 
Herd  v.  Bisseil 
Heyer  v.  Deaves 
Higbee  v.  Rico 
Higginbotham  v.  Burnett 
Higginson  v.  Clowes 

V.  Fabre 

Hildreth  v.  Sands 
Hill  V.  Buckminster 
Hine  v.  Dodd 
Hitchcock  V.  Giddings 
Hobby  V.  Finch 
Hodgson  V.  Butts 
Hoffman  v.  Smith 
Holbrook  v.  Tirrell 
Holliday  v.  Marshall 
Hollingsworth  v.  Fry 
Holmes  V.  Simons 

V.  Tremper 


i.  434 
i.  157 
i.  73 
ii.  144 
i.  498 
i.  192 
i.  51 
ii.  185 
i.  171 
ii.  319 
i.  636 
i.  104.  126 
ii.  254 
ii.  347 
i.  289,  290  I 
1.  94.  116 
i.  258 
i.  157.  161. 
185 
i.  40 
Holridge  v.  Gillespie     ii.  123.  127 
Homes  V.  Brewer  li-  259 

Hose  &  Harrison  v-  Pierce  ii.  WO 
Hoover  V.  DonnJ/y        ii.  254.  313 


Howard  v.  Easton 

•  V.  Moffat 

Howe  V.  Bass 
HowelJ  V.  Baker 


1.  96 

ii.  196 

i.  384 

i.  322.  384  ; 

ii.  123 

Howes  V.  Barker  i.  167.  279.  349. 1 

629 
Hubberd  v.  Savage 
Huber  v.  Burke 
Hudson  V.  Hudson 
V.  Swift 


Hughes  V.  Edwards 
V.  Moore 


1.  326 
i.  302 
31.  461 
i.  296 
ii.  126 
ii.  163 


Huntington  v.  Rumdeli 
Hurt  V.  Anderson 

I. 

Irvin  V.  Thompson  i.  120 

Irvine  v.  Campbell    ii.  62.  82.  340 
Izard  V.  Montgomery  i.  108 


J. 

Jackson  v.  Andrews 

V.  Barringer 

V.  Beach 

V.  Bowen 

V.  Buell 

V.  Bull 

V.  Burchin 

V.  Burgott 


I. 


a 


-  V.  Carpenter 

-  V.  Catlin 

-  V.  Chase 

-  V.  Clark 

-  V.  Croy 

-  V.  Cutright 

-  V.  Defendorf 

-  V.  Dego 

-  V.  Dickenson 

-  V.  Dysling 

-  V.  Given 

-  V.  Goes 
■  V.  Green 

V.  Ham 

V.  Hammond 

V.  Harris 

V.  Hart 

v.  Hartwell 

V.  Henry  ii.  185.  199,314 

V.  Holloway  i.  222 

V.  Howell  ii.  355 

V.  Hubbard  ii.  256 

V.  Jackson  ii.  119 

V.  Kniffen  i.  194 


ii.  324 
i.  384 
ii.  119,  120 
i.  157.  182 
i.  91 
ii.  87 
ii.  121 
ii.  254,  255. 
319 
ii.  121 
i.  96.  126 
i.  641 
ii.  65 
i.  157 
1.38.  146 
i.  384 
i.  541 
ii.  325 
i.  98 
255.  313 
i.  181 
i.  311 
ii.  185 
ii.  120 
ii.  87 
i.  181 
ii.  120 


Ixxvi 


INDEX    TO    AMERICAN    CASES. 


Jackson  v.  Lunn 

V.  Martin 

• V.  Matsdoif 

-■  V.  Mills 

V.  Moore 

V.  Morse 

V.  Neely 

V 


Page 

ii.  119,  120 
ii.  87 

ii.  153.  165 
ii.  153 
i.  542 
ii.  153 
ii.  242 


Pierce  i.  135    541,  542 
V.  Pike  ii.  355 

V.  Potter  i.  220.  222 

V.  Schoonmaker         i.  466 
V.  Sellick  i.  464 

V.  Sharp  ii-  254.  320 

V.  Sill         i.  157.  171.  183 


n. 


V.  Sisson 

V.  Stagg 

V.  Stanley 

V.  Sternbergh 

V.  Stevens 

V.  Titus 

V.  Todd 

V.  Valkenburgh 

V.  Van  Dalfsen 

V.  Vanderheyden 

V.  Van  Slyck 

V.  Walsh 

V.  Woolsey 

James  v.  Johnson 

V.  M'Credie 

Jarvis  v.  Rogers 
Jenkins  v.  Hogg 

V.  Reynolds 

Jennings  v.  Camp 
Jewett  V.  Palmer 
Jeggets  V.  Maney 

Johnson  v.   Catlin 

V.  Hauley 

V.  Hobson 

V.  Ronald 

V.  Stagg 

V.  Wygant 

JoUand  v.  Stainbridge 

Jollifie  V.   Hite 

Jones  V.  Carter 

V.   Caswell 

V.  Gardner 

V.  Hake 

V.  Hubbard 

V.  Peterman 

V.  Statham 

Jordan  v.   Sawkins 

Judson  V.  Wass 


K. 

Pa<!e 

Kane  v.  Bloodgood  i.  470 

Kauffelt  V.  Bower  ii.   73 

Kay  V.  Brookman  i.   288 

Keating  V.  Price  i.    159.  174 
Keisselbrack  v.  Livingston    i.    189 

Kelley  V.  Bradford  i.  253.  411 

y.  Rlunson 

Kempshall  v.  Stone 


i.  541 
ii.  251 
i.  181 
ii.  153 

104.  106 
i.  117 
ii.  121 
ii.  319 
ii.  123 
i.  206 
i.  541 

ii.  143.  240 

ii.  120.  133 

ii.  25.  252 

i.  51 

ii.  251 

i.  27 

i.  99 

i.  292 

ii.   313 

i.   220 

i.   126 

i.   220 

i.   253 

105.  108 
ii.  337 
i.  297 
ii.  319 

382.   384 
i.   384 
i.  31 
i.   292.  297 
ii.  345 
i.  347 
i.  135,  136 
i.   192 
i.   173 
35.  349.  423. 
628 


Kennedy  v.  Fury 

V.  Johnson 

V.  Nedrow 

V.  Woolfolk 


Kennon  v.  M 'Roberts 
Kent  V.  Welch 
Keer  v.  Love 

V.  Porter 

V.  Shaw 


Kidder  v.  Hunt 
King  V.  Bardeau 

V.  King 

V.  Pyle 

V.  Riddle 


Kirkpatrick  v.  Cisna 
KnatchbuU  v.  Grueber 

L. 


i.   52 

i.  244.  276. 

498 

i.  542 

i.  249 

i.  434 

ii.  63.  67 

i.  187 

ii.  94.  106 

i.   128.   131 

i.  174 

ii.   94 

i.   138 

i.   350 

i.  183 

i.  281 

i.   138 

ii.  345 

i.  355 


1. 


1. 


Lacey  v.  Wilson  ii.   314 

Lamar  v.  Jones         i.  470  ;  ii.   29 
Laniber  v.  Nancy  ii.  254 

Lancing  v.  M'Pherson  i.  74 

Lansdown  V.  Lansdown  i.  308,  309 
Lattimove  y.  Harsent  i.    159 

Lavender  v.  Blackstone        ii.    162 
Lausenbury  v.  The  Protection  Ins. 

Co. 
Lawless  v.  Jones 
Lawrence  v.  Monell 
v.  Beaubien 


Lazarus  v.  Bryson 
Lee  v.  Biddis 
v.  Munroe 


Le  Fevre  v.   Le  Fevre 
Leland  v.  Stone 
Levy  V.  Bank  U.  S. 
Lewis  V.  Gray 

V.  Maddisons 

V.  Payn 


Lienow  v.  Elli.s 


i.  294 

i.  182 

i.  83 

i.  307 

ii.    123 

i.   157 

i.   50 

i.   160 

i.   181 

i.  309 

i.  172 

ii.  313 

i.  289 

ii.  89.  91 


INDEX    TO    AMERICAN    CASES. 


Page 

Lightfoot  V.  Price  ii.  20  ; 

Lining  v.  Peyton         ii.  36,37.  39 
Little  V.  Henderson       i.  157.  183^ 
Livingston  v.  Byrne  i.  319;  ii.  300  I 

V.  Dean  ii.  304 

V.  Hubbs       ii.  211.  304 

V.  Livingston        i.  225. 

239  ;   ii.  S7.  190 

V.  Nevvkirk    i.  215.  220 

V.  Ten  Broeck  i.l88,  189 

ii.  23 
i.  182 
i.  244 
i.  386 
i.  191 
i.  349 


Pago 

Marquis  of  Normanby  v.  Devon- 
shire, Duke  of  i.  165 
Marsliall  v.  Fisk      i.  290  ;  ii.  254 

V.  Sprott  i.  172 

Marston  v.  Hobbs  i.  285  ;  ii.  90.  94 
Martin  v.  Smith         i.  298  ;  ii.  144 


V.  Willink 

Masters  v.  Masters 


Lloyd  V.  Scott 

Loften  V.  Heath 

Long  V.  Colston 

Lunt  V.  Holland 

Lyman  v.  United  Ins.  Co. 

Lyon  V.  Annable 


V.  Richmond 

M. 


i.  308,  309 


M'Allister  v.  Barry  i.  249 

M'Clintock  v.  Graham  i.  40 

M'Comb  V.  Wright  i.  58.  123,  124. 

410 
M'Connal  v.  Dunlap 
M'Crady  v.  Brisbane 
M'Crery  v.  Wilson 
M'Dermcd  v.  M'Castland 
M'Dowel  V.  Teasdale 
M'Dermot  v.  U.  S.  Ins.  Co 


u 


366 

88 

119 

i.  247 

ii.  348 

i.  157. 


183, 
35.  46 


M'Fairan  v.  Taylor 
M'Gregor  v.  Brown  ii. 

M'Guire  v.  M'Gowen  ii.  123. 
153 
M'Keen  v.  Delancy 
M'Kinney  v.  I^eacock 


185 

134 

260 

136. 

162 

i.  185 

i.  172 


1.  292 

i.  183 

ii.  62 

174.  208 

115.  301 

ii.  345 

i.  125 

i.  182 

i.  385 


I.  221 

ii.  85 
ii.  123 

i.  166 
ii.  348 


Mathews  v.  Dragaud 
Matson  v.  Parkhurst 
Maupin  v.  Whiting 
Mayo  V.  Percell  i.  374.  411.  642  ; 

ii.  3. 
Mayor  of  Alexandria   v.  Patten 

i.  641 
Mead  v.  Johnson  i.  190 
Meeks  v.  Richbourg  ii.  120 
Merrill  v.  Emery  i.  295 
Methodist  Episcopal  Ch.  v.  Ja- 
ques  i.  239,  240.  ii.  28.  140. 
173.  176 
Middleton  v.  Eyre  i. 
V.  Perry  i.  181,182 


M'Kennon  V.  Thompson  i.  214.  220 
M'Mechan  v.  Griffing  ii.  259.  336 
M'Milan  v.  Vanderlip 
M'Mina  v.  Owen 
M'Tear  v.  Buttorf 
M'Teer  v.  Shepard 
M'VVilliams  v.  Nisley  ii 
Mackay  v.  Rhinelander 
Maclean  v.  Dunn 
Mageehan  v.  Adams 
Makepeace  v.  Bancroft 
Mann  v.  Mann  i.  157.  133,  184 
Mann  &  Tolcs  v.  Pearson  ii.  384 
Marks  v.  Pell  i.  193.  196 


Milledge  v.  Samar 
Miller  v.  Plumb 

v.  Blandist 

Milling  V.  Crankfield 
Millison  V.  Nicholson 
Mills  v.  Goodsell 

v.  Griswold 

Minsker  and  Bale  v. 

Mitchell  v.  Deroche 

v.  Hazen 

v.  Johnson 

v.  Warner  ii. 


MoncriefFv.  Goldsborough 

Monell  V.  Colden 

V.  Lawrence  i.  66  : 


107 

190 

i.  590 

i.  41 

i.  155 

i.  157.  182 

ii.  121 

i.  250 

ii.  346 

IMorrison 

i.  542 

i.  543 

ii.  90 

i.  288 

88,  89,  90, 

91.  94 

i.  23 


n. 


1.  34 
328, 
329 
Moody  V.  Vandyke  i.  221.  ii.  123. 

136 

i.  461 

ii.  23 

i.  541 

ii.  254 

i.  149 

ii.  23 

i.  210 

465.  ii.  341 


Moocrs  V. 
Moore  v. 

V. 

V. 

Morgan  v. 
V 


White 
M'Kay 
Pearce 
The  Auditor 
,  Morgan 
.  Schermerhorn 


Morris  v.  Buckley 
V.  Vaudercn  i. 


Ixvviii 


INDEX      TO    AMERICAN    CASES. 


Pa^'e 

Morse  V.  Shattuck  ii.  355 

Moseley  v.  Buck  i.  320 

Movan  v.  Hays    i.  157.  161.  170  ; 

ii.  149 
Mumford  V.  Halle tt  i.  183 
Munn  V.  Commission  Co.  i.  60 
Mum-ov.  Alaire  i.  187  ;  ii.  123 
Munroe  v.  Perkins  i.  159 
Murray  v.  Bailou  ii.  36.  141.  260 
296.  307.  322,  323.  325.  340 
V.  Finsterii.  260.305.  307. 

323.  357,  358 
Murray  v.  Gouverneur  ii.  304 

V.  Riggs  ii.  311 

V.   Syiburn    ii.    260.    303, 

304.  325.  328 
Mutual  Ins.  Soc.  v.  Stannard  i.  616 

N. 

Nelson  v.  Carrington     i.  279.  382 

V.  Dubois  i.  1 17 

V.   Matthews    i.  382.   389. 

391 

V.  Oldfield  i.  194 

Nesbit  V.  Nesbit  ii.  91 

Neufville  v.  Mitchell  i.  149  ;  ii.  348 
Newcomb  v.  Ramar  i.  95 

Newhall  V.  Wheeler  i.  543 

New-York  Corporation  v.  Cash- 
man  ii.  100 
NicoU  V.  Trustees   of   Huntington 
ii.  28.  30 
Niven  v.  Belknap  i.  133.  135,  136  ; 

ii.  300 
Norcross  v.  Widgery  ii.  255 

Northorp  v.  Speary  ii.  357 

Northrup  v.  Northrup  i.  297 

Norton  V.  Hathaway       i.  369.  372 

V.  Rose  ii.  303 

Nourse  V.  Prime  ii.  22 

Noyes  v.  Chapin  i.  146 

O. 

Obermyer  v.  Nichols  i.  292 

O'Harra  v.  Hall  i.   157.  172.  181. 
183.  279 
O'Connor  v.  Spaight  i.  173 

Orr  V.  Hodgson  i.  245  ;  ii.  65.  119 
Osborne  v.  Bremar        i.  353.  355 
Osgood  V.   Franklin   i.  316.  319. 
321,  322,  323,  324,  325 


Overseers 

1. 

208 

i. 

288 

157. 

181 

Dunning 

11. 

120 

i.  97. 

105 

i. 

320 

i. 

297 

u. 

258 

Overseers  of  Berlin 
of  Norwich 


Page  V.  Mann 

Paine  v.  M'Intier  i, 

Parish  in   Brunswick  v. 

Parker  v.  Bodley 

V.  Carter 

V.  Parmelee 

V.  Patrick 

Parkhurst  v.  Van  Cortlandt  i.  105. 
133,  134,  135,  136.  148,  149. 
172.  203.  252  ;  ii.  305 
Parkist  v.  Alexander  ii 
Parsons  v.  Hooker 
Parks  v.  Jackson 
Paynes  v.  Coles 
Pearce  v.  House 
Pease  v.  Barber 
Peay  v.  Briggs 
Peck  v.  Randall 
Peebles  v.  Reading 
Penniman  v.  Hartshorn  i 
Penn  v.  Klyne 
People  V.  Pleas  and  Clark 
Perit  v.  Wallis 


Perkins  v.  Wright  i.  244,  246. 
Perry  v.  Dixon  ii. 
Peters  v.  Goodrich  i. 
Phelps  V.  Ellsworth 
Phillips  V.  Bridge 
V.  Chamberlaine 


123.  253 

i.  187 

ii.  324 

ii.  348 

i.  461 

i.  284 

i.  383 

i.  461 

ii.  317 

100.117 

i.  541 

.  601 

ii.  20 

247 

ii.  123 

i.  190 

ii.  262 

ii.  345 


1. 


v.  Thompson   i.   97. 

134,  135.  137,  138.  140.  149 
Phyfe  v.  Ward  ell  i 

Pierson  v.  Hooker  i 

Pitcairn  v.  Ogbourne 
Pitcher  v.  Livingston 
Plankerhorn  v.  Cave 
Pledger  v.  David 
Plumer  v.  Robertson 
Pollard  v.  Cartwright 

V.  Dwight 

Poole  v.  Shergold 
Porter  v.  Breckenridge 

v.  Noyes 

v.  Rose 

Postell  V.  Postell 
Powell  V.  Riddle  i 
v.  Clark 


195 

133, 

276 

i.  203 

i.  157 

i.  193 

i.  285 

i.  206 

ii.  190 

ii.  316 

ii.  300 

ii.  90 

i.  355 

ii.  304 

i.  423 

i.  293 

i.  229 

ISl.  188 

i.  384 


INDEX    TO    AMEUICAN    CASES. 


Ixxix 


Page 

Pratt  V.  Canoll       i.  495.  497,  498 

V.  Law  i.  134.  496,  497,498 

Preston  v.  Crofut  ii.  185 

Price  V.  Price  i.  355 

Priest  V.  Rice  ii.  259.  336 

Pringle  v.  Samuel  i.  191.  369 

V.  Witten       i.  384  ;  ii.  94 

Pryor  v.  Adams  ii.  348 

Punderson  v.  Brown  i.  615 

Putnam  v.  Westcot  i.  349 


Q- 


Quackenboss  v.  Lansing       i.  292 
Quarles  v.  Lacy  i.  73 

Quesnel  v.  Woodlief     i.  382,  383 


R. 


.  Ramsay  v.  Brailsford  i.  248.  293. 

500 
Raymond  v.  Bearnard  i.  349 

Readc  v.  Livingston  ii.  190.  195 
Reading  v.  Weston  i.  196  ;  ii.  159 
Redwood  v.  Reddick  i.  469 

Reed   v.  Carter  i.  64 

Reigal  v.  Wood  ii.  298 

Revere  v.    Ijconnrd   i.    157.    183. 

188 
Rice  V.  Peet  i.  96 

Richards  v.  Allen  ii.  155 

V.  Dutch  i.  196 

V.  Killam  i.  157 

Ricker  v.  Kelley  i.  91 

Riden  v.  Frion  i.  464 

Ilidgeley  v.  Carey  ii.  62 

V.  Gartrell  i.  622 

Ried  V.  Colcock  ii.  345 

Riggs  V.  Denniston  ii.  346 

V.  Murray  ii.  209 

Riker  v.  Kelley  i.  91 

Roach  V.  Rutherford  i.  253.   411. 

413 
Robb  V.  Montgomery  i.  192 
Robert  v.  Garnie  i.  641 
Roberts  v.  Anderson  ii.  199 
V.   Stanton    ii.    254,   255. 

298 
Robertson  v.  Ewell  ii.  67 
Robinson  v.  Cropsey  i.  311 
Rodriguez  v.  Haffernan  ii.  304 
Rogers  v.  Dickens  i.  193 
V.  Hurd                      ii.  121 


Rogett  V.  Merritt 
Ross  V.  Norvell      i.  157. 
Rothmahler  v.  Myers     i. 
Rothschild  v.  Brookman 
Rowton  V.  llowton 
Rugge  V.  Ellis  i. 

Rundle  v.  Etwein 

V.  Murgatroyd   ii. 


Rjmey  v.  Edmands 
Russell  V.  Clayton 
V.  Lewis 


Rutherford  v.  Ruff 
S. 


Page 

i.  100 

181.  208 

166.  183 

i.  249 

i.  148 

247.  317 

i.  621 

190.  196 

ii.   159 

i.  627 

ii.  164 

i.  246 


St.  John  V.  Benedict  i.  246 

Sally  V.  Sandifie  i.  176 

Sampson  v.  Sampson  ii.  165 

Sandford  v.  Button         i.  461.  464 

V.  Roosa  i.  622 

Sargeant  v.  Ballard  i.  398 

Saundcr.s  v.  Wakefield  i.  99 

Sayers  v.  Whitfield  ii.  22 

Schemerhorn  v.  Vanderheyden 

i.  166 
Schieffelin  v.  Stewart  ii.  141 

Scot  V.  Gibbon  ii.  196 

V.  M'Farland  i.   97 

V.  Wharton  i.  262 

Sedgwick  v.  HoUenback  ii.  94.  96 
Sessions  v.  Barfield  i.  157. 171. 187 
Seton  V.  Slade  i.  99 

Seymour  v.  Bull  ii.  52 

V.  Delancy       u  245,  246 

Sexton  V.  Wheaton  ii.  185 

Sharper.  Gibson  i.  164 

Sheaffe  v.  O'Neal  ii.  119 

Shearer  v.  Fowler  i.  629 

Shelton  v.  Shelton  i.  185 

Shepard  v.  Little     i.  156  ;    ii.  357 

V.  M'Evers  ii.  307 

Sherburne  V.  Fuller  i.  134.  140 
Shermer  v.  Shermer  i.  187 
Sherwood  v.  Salmon  i.  369.  372 
Shirras  v.  Caig  ii.  261 
Shotwell  V.  Murray  i.  307.  309 
Shubrick  v.  Guerard  i.  262 
Simmons  v.  Cornelius  i.  155 
Simon  V.  Brown  ii.  254 
V.  Gibson                      ii.  307 


Simonds  v.  Catlin     i.  96.  126,  127 
Sims  V.  Lewis  i.  276  ;  ii.  116 

Skinner  v.  Dayton  i.  260 


Ixxx 


INDEX    TO    AMERICAN    CASES. 


Page 

S!ee  V.  Manhattan    Company 

i.  196 
i.  185 
i.  297 
i.  260 
i.  626 
128.  129. 


Sleght  V.  Hartshorne 
S locum  V.  Despard 
Slosson  V.  Beadle 
Smede  v.  Elmendorf 
Smith  V.    Brailsford    i. 


V.  Brush 


—  V.  Buitis 

—  V.  Ediington 

—  V.  Evans 

—  V.  Fenner 

—  V.  Kniskern 

—  V.  Lane 

—  V.    Patton  i. 


132.  135 

ii.  347 

i.  462 

i.  220 

i.  384.  389 

i.  157.  194 

i.  434 

ii.  154 

133.  136.   136. 


138.  146.  542  ;  ii.  158 

V.  Williams  i.  170.  190 

Snelgrove  v.  Snelgiove  i.  434  ;  ii. 
352,  353.  359,  360,  361,  362 
Snelling  v.  Utteiback    ii.  153,  154 
Snow  V.  Chapman  i.  384 

Snyder  v.  Snyder  i.  157.  170.  182 
Somerville  v.  Trueman        i.  497  ; 

ii.  301 
Somes  V.  Brewer  ii.  257 

South  CaroUna  Soc.  v.  John- 
son i.    157 
Southgate  v.  Taylor  ii.  140 
Souverbye  v.  Arden       i.  18S,  191 
Speake  V.  United  States        i.  157. 


174 

i.  65 

i.  469 

i.  285 


Spencer  v.  Champion 

Spotswood  V.  Dundridge 

Staats  V.  Ten  Eyck 

Stackpole  v.  Arnold       i.  157.  170, 

171.  181  ;  ii.    159 

Stadt  V.  Lill  i.  99 

State  V.  Gaillard  i.  35 

Steele  v.  Ellmaker  i.  51 

Steere  v.  Steere  ii.  163 

Steinhauer  v.  Witman  i.  302 

Stery  v.  Arden    ii.  185.  187,  188. 

190.  196.  199.  200.203.  335 

Stevens  v.  Cooper  i.  157.  164.  171. 

174.  176.  178 


V.  Vancleve 


Stewart  v.  Kip 
Stith  V.  Barnes 
Stockton  V.  Cook 
Stoddart  v.  Smith 
Storer  v.  Batson 
v.  Freeman 


i.  194 
ii.  345 

i.  183.  185 
i.  635 

i.  352.  358 
ii.  119 

i.  157.  183 


Storm  v.  Mann 
Storms  V.  Snyder 
Storrs  V.  Barker        i. 
Stouffer  V.  Coleman 
Stoughton  V.  Lynch 
V.  Pasco 


Stow  V.  Tift 
Streator  v.  Jones 
Strong  V.  Glasgow 
V.  Stuart 


Stroud  V.  Lockart 
Stuart  V.  Luddington 
Stubbs  V.  King 
Stuyvesant  v.  Tomki 
Sullivan  v.  Bates 
Sumner  v.  Yvilliams 
Sutton  V.  Lord 
Swaine  v.  Perine 
Svveitzer  v.  Hummel 
Ssvift  v.Edson 
Syler  v.  Eckhait 

T. 


Tabb  v.  Archer 
Taber  v.  Penot 
Table  V.  Archer 
Taft  V.  Brewster 
Talbot  V.  Bowen 
Talliaferro  v.  Minor 
Tantinger  v.  Pole 
Tayloe  v.  Adams 
Taylor  v.  Cole 

V.  Heriot     ii. 

V.  Patrick 

V.  Tovvnsend 

Telfair  v.  Telfair 

Ten  Broeck  v.  Livingston 

350.  414 
Thatcher  v.  Dinsmore 
Thayer  v.  Wendell    i.  59 


Page 

I. 

262 

i.  98 

309;  ii. 

300 

ii.  62.  67.  82 

ii.  12 

1. 

326 

i. 

622 

I. 

170 

i.  172. 

208 

196 

11. 

254 

249 

i. 

208 

ns 

i.  98 

ii. 

348 

1.  59 

11. 

258 

]. 

434 

i. 

296 

ii.  81- 

i.  135, 

136 

Thigpen  v.  Balfour 
Thomas  v.  Perry 

V.  Trustees,  &c 

Thompson  v.  Davenport 
V.  Davies 


Gregory 
Ketcham  i.  157 


i.  203 

i.55 

i.  203 

ii.  240 

i.  121 

ii.  37 

i.  69 

ii.  65 

ii.   300 

185.  260 

i.  246 

i.  41 

i.  259 

i.  34 

418.  423 

i.  59 

ii.  105 

i.249 

i.  384 

i.  96 

ii.  4 

i.  31 

i.  91 

170. 


491 
v.  Tod.  i.  128.  132. 138. 

258 

v.  White  i.  157;  ii.  156 

Tiernan  v.  Wilson  i.  64 


INDEX    TO    AMERICAN    CASES. 


Ixxxi 


Tippits  V.  Walker 
Togon  V.  Mooney 
Tobe  V.  Hardy 
Townsend  v.  Stangroom 
Travis  v.  Waters 
Treadvvell  v.  Bulkley 
Troughton  v.  Johnston 
Troup  V.  Wood 
Trull  V.  Bigelow 
Trustees  of  Louisville  v. 

of  University  v 


mour 
Tryon  v.  Mooney 
Tunno  v.  Fludd 

V.  Trezevant 

Tuttle  V.  Jackson 
Twanley  v.  Henley 
Tyler  v.  Bradt 
4 V.  Wilkinson 


Page 

i.  59 

i.  96 

ii.  81 

i.  193 

ii.  28 

i.  157 

i.  23 

i.  31 

ii.  257 

Gray    ii. 

120 

Gil- 

ii.  24 

i.  96 

i.  369 

ii.  190 

ii.  323 

ii.  94 

ii.  144 

i.  399 


U. 

Ulen  V.  Kittredge  i.  117 

Union  Bank  v.  Emmerson  i.  40.  42 

United  States  v.  Gurney  ii.  20 

V.  Hor  i.  326 

V.  Owen  ii.  22 

V. 


Van  Allen  v.  Vanderpool 
Vanderkarr  v.  Vanderkarr 


i.  51 
ii.  94. 
106 
Vandervoort  v.  Smith  i.  157 

Van  Eps  v.  Corporation  of  Sche- 
nectady i.  353.  355.  629 
Van  Orden  v.  Van  Orden  i.  434 
Verplank  v.  Sterry  ii.  190 
Vincent  v.  Huff  i.  220 
Voll  v.  Smith  i.  156 

W. 


Wade  v.  Colvert 
Wadsworth  v.  Ruggles 
v.  Wendell 


1.  246 
i.  197 
i.  616 

Wain  V.  Walters  i.  99 

Wainwright  v.  Read        i.  34.  160, 
161.  359.  384;  ii.  4 
Waldin  v.  Gratz  i.  461 

Waldo  v.  Long  i.  285 

Vol.  I.  K. 


Walker  v.  Butz 
Wallace  v.  Baker 
V.  Duffield 


II. 


Walley  v.  Walley 

Wallis  v.  Wallis 

Wamburzee  v.  Kannedy 

V.  Shall  ett 

Wilson 
Winslow 


—  V. 

—  V. 


Warden  v.  Adams 
Washburn  v.  Merrills 


Pago 

ii.  323 
i.  172 
153,154. 
176 
ii.  256 
i.  629 
.466.469 
ii.  162 
i.  434 
i.  315 
ii,  337 
166.  190. 
194.  196 

et  al.  v.  Sproat        i.  42 

Waters  v.  Travis  i.  266.  353.  358. 
366.  383.  491.  495  ;  ii.  349 
Watlington  v.  Howley  ii.  323.  328 
Weaver  v.  Bentley  i.  279.  348 
Webb  V.  Evans  i.  434 

Webster  &  Ford  v,  Hoban     i.  44. 

69 
Webster  v.  Woodford    ii. 
Weightman  v.  Caldwell 
Wells  et  al.  v.  Banister 
Trustees 

V.  Smith 

Welman  v.  Lawrence 


121,  122 

i.  119 

and 

i.  42 

i.  293 

ii.  52 

Wendell  v.  Van  Rensselaer  ii.  128. 

300 
Western  v.  Russell  i.  99 

Wetmore  v.  White        i.  133.  135, 
136.  138.  146 
Whallon  v.  Kauffman  ii.  104 

Wheaton  v.  Wheaton  i.   196 

Wheeler  v.  Hughes  ii.  304 

Wheelwright  v.  Wheelwright  i.  313 
White  V.  Eagan  i.  182.  190 

V.  Cassanave  ii.  62.  67 

V.  Cox  i.  246 

V.  Skinner  i.  59 

V.  The  City  of  Cincinnati 

i.  400 
Whitelocke  v.  Musgrave 
Whitwell  V.  Wyer 


Wigglesworth  v.  Steers 
Wight  mun  v.  Reside 
Wilbur  V.  How 
Wilcox  V.  Calloway     ii 

Wilkins  v.  Woodfin 
Wilkinson  v.  Campbell 
V.  Scott 


i.  288 

i.  118 

i.  246 

ii.  47 

i.  31 

304.  307. 

313 

ii.  348 

i.  51 

ii.  355 


Ixxxii 


INDEX    TO    AMERIGAN    CASES. 


Willam  V.  Nevil 
Williams  v.  Peyton 

V.  Price 

V.  Wilkins 


Page 
i.  166 
ii.  62 
ii.  62 
ii.  28 
Williamson  v.  Dale  i.  74 

V.  Gordon  i.  539.  583  ; 

ii.  296 
Willington  v.  Gale  i.  615 

Willink  V.  Miles  i.  641 

Willis  V.  Bucher  ii.  307 

335.  340 
Wilson  V.  Force  i.  316 

V.  Graham  ii.  65 

Windham  v.  Chetwind  ii.  85 

Winston  v.  Johnson  i.  616 

Wiser  v.  Blachley  i.  189 

Witherspoon  v.  Anderson    i.  628  ; 

ii.  305 
Witman  v.  Ely  i.  302 

Wolf  V.  Carothers  i.  172 

Wood  V.  Hudson  i.  31.  74 


Page 

Woodford  V.  Pendleton  ii.  88 

WooUam  v.  Hearn  i.  192 

Work  V.  Hoofmagle  i.  627 

Worthington  v.  Hyllyer  i.  387.  392 
Wragg  V.   Comptroller  Gen- 
eral ii.  63 
Wright  V.  Decklyne  i.  32.  160.  161 
Wyman  v.  The  Mayor  of  New 
York                              i.  400 


Y. 


Yancy  v.  Lewis 
Yohe  V.  Barnet 
Youst  V.  Martin 


ii.  94 
ii.  196 
ii.  318 


Z. 


Zantinger  v.  Ketch  i.  165 

Zylstra  v.  Keith      i.  191 ;  ii.  348 


THE  LAW 

OF 

VENDORS   AND   PURCHASERS 

OF 

ESTATES. 

INTRODUCTION. 

Moral  writers  insist  («),  that  a  vendor  is  bound,  in 
foro  conscientm,  to  acquaint  a  purchaser  with  the  de- 
fects of  the  subject  of  the  contract.  Arguments  of 
some  force  have,  however,  been  advanced  in  favor  of  the 
contrary  doctrine  ;  and  our  law  does  not  entirely  coincide 
with  this  strict  precept  of  morality (6). 

If  a  person  enter  into  a  contract,  with  full  knowledge 
of  all  the  defects  in  the  estate,  the  question  cannot  arise  : 
scienlia  enim  utrinque  pur  pares  facit  contrahentes(^c). 

So  if,  at  the  time  of  the  contract,  the  vendor  himself 
was  not  aware  of  any  defect  in  the  estate,  it  seems  that 
the  purchaser  must  take  the  estate  with  all  its  faults,  and 
cannot  claim  any  compensation  for  them. 

(a)  Cic.  de  Off.  3.  13;  Grotius  de  Jure  Belli  ac  Pacis,  1.  2.  c.  12, 
s.  9  ;  Puflendorf  dc  Jure  Natursc  et  Gentium,  1.  5.  c.  3.  s.  2  ;  Puffen- 
dorf  de  Off.  1.  1.  c.  15.  s.  3;  Valerius  Maximus,  1.  8.  c  11  ;  et  vide 
Deuteronomy  xxv.  14  ;    Paley's  Moral  Philosophy,  vol.  1.  b.  3.  oh.  7. 

(6)  Vide  Infra,  eh.  6. 

(c)  Grotius  de  Jure  Belli  ac  Pacis,  1.  2.  c.  12.  s.  9.  3;  Puffendorf 
de  Jure  Natura;  et  Gentium,  1.  5.  c.  3.  s.  5. 

VOL.    \.  1 


INTRODUCTION. 


2 

And  even  if  the  purchaser  was,  at  the  time  of  the 
contract,  ignorant  of  the  defects,  and  the  vendor  was 
acquainted  with  them,  and  did  not  disclose  them  to  the 
purchaser ;  jet,  if  they  were  patefit,  and  could  have  been 
discovered  by  a  vigilant  man,  no  relief  will  be  granted 
against  the  vendor. 

The  disclosure  of  even  patent  defects  in  the  subject  of 
a  contract,  may  be  allowed  to  be  a  moral  duty ;  but  it 
is  what  the  civilians  term  a  duty  of  imperfect  obligation. 
Vigilantibus,  non  dormientibus  jura  subveniunt,  is  an  an- 
cient maxim  of  our  law,  and  forms  an  insurmountable  bar- 
rier against  the  claims  of  an  improvident  purchaser. 

In  this  respect,  equity  follows  the  law.  But  it  has 
been  decided,  that  if  a  vendor  during  the  treaty,  indus- 
triously prevent  the  purchaser  from  seeing  a  defect  which 
might  otherwise  have  easily  been  discovered,  he  is  not 
entitled  to  the  extraordinary  aid  of  a  court  of  equity  :  and 
it  is  conceived,  that  he  could  not  even  sustain  an  action 
against  a  purchaser  for  a  breach  of  the  contract. 

And  if  the  vendor  know  that  there  is  a  late7it  defect  in 
his  estate,  which  the  purchaser  could  not,  by  any  attention 
whatever,  possibly  discover,  it  is  not  clear  that  he  is  not 
bound  to  disclose  his  knowledge,  although  the  estate  be 
sold,  expressly  subject  to  all  its  faults(f/). 

By  the  civil  law,  vendors  were  bound  to  warrant  both 
the  title  and  estate  against  all  defects,  whether  they  were 
or  were  not  conusant  of  them.  To  prevent  the  incon- 
veniences which  would  have  inevitably  resulted  from 
this  general  doctrine,  it  was  qualified  by  holding,  that  if 
the  defects  of  the  subject  of  the  contract  were  evident,  or 
the  buyer  might  have  known  them  by  proper  precaution, 
he  could  not  obtain  any  relief  against  the  vendor. 

The  rule  of  the  civil  law  also  was,  ^^  simplex  commen- 
datio  non  obligat.''''     If  the  seller  merely  made  use  of  those 

(d)  See  post.  eh.  6.  s.  2. 


INTRODUCTION. 


expressions,  which  are  usual  to  sellers,  who  praise  at  ran- 
dom the  goods  which  they  are  desirous  to  sell,  the  buyer, 
who  ought  not  to  have  relied  upon  such  vague  expres- 
sions, could  not,  upon  this  pretext,  procure  the  sale  to  be 
dissolved(e). 

The  same  rule  prevails  in  our  law(y^,  and  has  received 
a  very  lax  construction  in  favor  of  vendors.  It  has  been 
decided,  that  no  relief  lies  against  a  vendor  for  having 
falsely  affirmed,  that  a  person  bid  a  particular  sum  for  the 
estate,  although  the  vendee  was  thereby  induced  to  pur- 
chase it,  and  was  deceived  in  the  value(^). 

Neither  can  a  purchaser  obtain  any  relief  against  a  ven- 
dor for  false  affirmation  of  value(A)  ;  it  being  deemed 
the  purchaser's  own  folly  to  credit  a  nude  assertion  of 
that  nature.  Besides,  vUlue  consists  in  judgment  and 
estimation,  in  which  many  men  differ.  So,  where  a 
church  lease  was  described  in  the  particulars  of  sale,  as 
being  nearly  of  equal  value  with  a  freehold,  and  renew- 
able every  ten  years,  upon  payment  of  a  small  fine,  the 
purchaser  was  not  allowed  any  abatement  in  his  purchase- 
money,  although  the  fine  was  very  considerable,  and  it 
was  proved  that  the  steward  of  the  estate  had  remon- 
strated with  the  vendor,  before  the  sale,  upon  his  false 
description(i).  And  a  statement  in  the  particulars  of  an 
advowson,  that  an  avoidance  of  the  preferment  was  likely 
to  occur  soon,  was  held  to  be  so  vague  and  indefinite, 
that  the  Court  could  not  take  notice  of  it  judicially ;  and 

(e)  1  Dom.  85. 

(/)  Chandelor  v.  Lopus,  Cro.  Jac.  4. 

(o-)  1  Roll.  Abr.  101.  pi.  IG.  See  1  Sid.  146  ;  Kinnaird  r.  Lord 
Dean,  stated  infra,  n. ;  Dawes  v.  King,  1  Stark.  75. 

(/i)  Harvey  r.  Young,  Yelv.  20.  See  Duckenfield  r.  Whichcott,  2 
Cha.  Ca.  204;  see  Ekins  r.  Trcsham,  1  Lev.  102;  reported  1  Sid. 
146,  by  the  name  of  Lcakins  v.  Clissel. 

(t)  Brown  V.  Fenton,  Rolls,  23  June  1807,  MS. ;  S.  C.  14  Yes.  jun. 
144. 


4 


INTRODUCTION. 


that  its  only  effect  ought  to  have  been,  to  put  the  purchaser 
upon  making  inquiries  respecting  the  circumstances 
under  which  the  alleged  avoidance  Mas  likely  to  take 
place,  previous  to  his  becoming  the  purchaser(A:).  So 
a  statement,  that  the  property  is  uncommonly  rich  water 
meadow  land,  will  not  annul  the  contract,  although  the 
land  is  imperfectly  watered(/). 

But  if  a  vendor  affirm,  that  the  estate  was  valued  by 
persons  of  judgment,  at  a  greater  price  than  it  actually 
was,  and  the  purchaser  act  upon  such  misrepresentation, 
the  vendor  cannot  compel  the  execution  of  the  contract 
in  equity(m),  nor  would  he,  it  should  seem,  be  permitted 
to  maintain  an  action  at  law  for  non-performance  of  the 
agreement. 

And  a  remedy  will  lie  agffinst  a  vendor,  for  falsely 
affirming  that  a  greater  rent  is  paid  for  the  estate  than  is 
actually  reserved(n)(I);  because  that  is  a  circumstance 
within  his  own  knowledge.     The  purchaser  is  not  bound 

(k)  Trower  v.  Newcome,  3  Mer.  704. 

(/)  Scott  V.  Hanson,  1  Sim.  13. 

(j/i)  Buxton  V.  Cooper,  3  Atk.  383  ;  S.  C.  MS. ;  sec  Partridge  v. 
Usborne,  5  Russ.  195  ;  Small  v.  Atlwood,  1  You.  Rep.  407,  now  in  D. 
P.  upon  appeal. 

(n)  Eikins  r.  Tresham,  ubi  sup. ;  Lysney  v.  Selby,  2  Lord  Raym. 
1118;  1  Salk.  211,  S.  C.  nom.  Risney  r.  Selby;  Dobell  v.  Stevens, 
3  Barn.  &  Cress.  623  ;  Small  v.  Attwood,  1  You.  Rep.  40'. 


(I)  In  the  1st  vol.  of  Coll.  of  Deci:^.  p.  332,  the  fallowing  case  is  re- 
ported : — An  heritor  having  solemnly  affirmed  to  his  tacksman  at  setting 
the  lands,  that  there  was  paid,  by  the  preceding  tenants,  for  each  acre, 
a  great  deal  more  than  really  was  paid,  and  thereby  induced  him  to  take 
it  at  a  very  exorbitant  rate,  whereby  he  was  leased  ullra  dimidium ;  yet 
continued  to  possess  two  years  before  he  complained.  The  Lords 
found  the  allegiance  of  circumvention  and  fraud,  both  in  consilio  and 
in  eventu,not  sufficient  to  reduce  the  tack,  and  thai  the  tenant  shoidd 
have  informed  himself  better  what  was  the  true  rent,  and  not  have  relied 
on  the  setter^s  assertion,  and  ought  to  have  tried  the  quality  of  the  groimd, 
and,  his  eye  being  his  merchant,  lie  had  no7ie  to  blame  but  himself,  espe- 
cially now  that  he  had  acquiesced  two  years.     Kinnaird  v.  Lord  Dean. 


INTRODUCTION.  5 

to  inquire  farther  :  for  the  leases  may  be  made  by  parol, 
and  the  tenants  may  refuse  to  inform  the  purchaser  what 
rent  they  pay  ;  or  the  tenants  may  combine  with  the  land- 
lord, under  whose  power  they  frequently  are,  and  so  misin- 
form and  cheat  the  purchaser.-  It  has  been  decided  also, 
after  great  consideration(o),  that  a  purchaser  may  recover 
against  a  vendor  for  false  aftirmation  of  rent,  although  he 
did  not  depend  upon  the  statement,  but  inquired  what  the 
estate  let  for.  Where  it  can  be  satisfactorily  proved, 
that  the  ])urchaser  did  not  rely  upon  the  vendor's  assertion, 
a  jury  would  undoubtedly  give  but  trifling  damages. 

It  seems  that  the  same  remedy  will  lie  against  a  person 
not  interested  in  the  property,  for  making  a  false  representa- 
tion to  a  purchaser  of  value  or  rent,  as  might  be  resorted 
to  in  case  such  person  were  owner  of  the  estate(/;) ;  but 
the  statement  must  be  mR^e.  fraudulently,  that  is,  with  an 
intention  to  deceive  ;  whether  it  be  to  favor  the  owner, 
or  from  an  expectation  of  advantage  to  the  party  himself, 
or  from  ill-will  towards  the  other,  or  from  mere  wanton- 
ness, appears  to  be  immaterial(^). 

And  in  cases  of  this  nature  it  w  ill  be  sufficient  proof  of 
fraud  to  show,  first,  that  the  fact,  as  represented,  is  false  : 
secondly,  that  the  person  making  the  representation  had 
a  knowledge  of  a  fact  contrary  to  it.  The  injured  party 
cannot  dive  into  the  secret  recesses  of  the  other's  heart, 
so  as  to  know  w  hether  he  did  or  did  not  recollect  the  fact ; 
and  therefore,  it  is  no  excuse  in  the  party,  who  made  the 
representation,  to  say,  that  though  he  had   received  in- 

(0)  Lysney  v.  Selby,  tihi  sup. 

(p)  Pasley  v.  Freemen,  3  Term  Rep.  51  ;  Eyre  v.  Dunsford,  1  East, 
318;  Ex  parte  Carr,  3  Ves.  &  Bea.  108. 

{q)  Haycraft  v.  Creasy,  2  East,  92  ;  Tapp  v.  Lee,  3  Bos.  &  Pull. 
367 ;  and  see  6  Ves.  jun.  186  ;  13  Yes.  jun.  134  ;  12  East,  634,  n. ; 
Hutchinson  v.  Bell,  1  Taunt.  658  ;  De  Graves  v.  Smith,  2  Camp.  Ca. 
533  ;  Foster  v.  Charles,  7  Bing.  1U6  ;  S.  C.  4  Moo.  &  P.  61  and  741  ; 
Corbett  v.  Brown,  2  Mood.  &  Malk.  108  ;  S.  C  5  Carr.  &  P.  363. 


Q  INTRODUCTION. 

formation  of   the  fact,   he  did  not  at    that   time  recol- 
lect it(7-). 

A  purchaser  is  not  liable  to  an  action  of  deceit  for  mis- 
representing the  seller's  chance  of  sale,  or  the  probability 
of  his  getting  a  better  price  for  his  commodity  than  the 
price  which  such  proposed  buyer  ofrers(5).  Nor  is  a 
purchaser  bound  to  acquaint  the  vendor  with  any  latent 
advantage  in  the  estate :  for  instance,  if  a  purchaser  has 
discovered  that  there  is  a  mine  under  the  estate,  he  is  not 
bound  to  disclose  that  circumstance  to  the  vendor,  although 
he  knows  the  vendor  is  ignorant  of  it(t).  Equity  will 
not,  however,  interfere  in  favor  of  a  purchaser  who  has 
misrepresented  the  estate  to  any  person  who  had  a  desire 
of  purchasing  it(w). 

And  a  very  little  is  sufficient  to  affect  the  application 
of  this  principle.  If,  it  has  been  said,  a  word,  a  single 
word  be  dropped  which  tends  to  mislead  the  vendor,  that 
principle  will  not  be  allowed  to  operate(a;). 

And  if  a  purchaser  conceal  the  fact  of  the  death  of 
a  person  of  which  the  other  is  ignorant,  and  by  which  the 
value  of  the  property  is  increased,  equity  will  set  aside 
the  contract(y). 

The  same  rules  apply  to  incumbrances  and  defects  in 
the  title  to  an  estate,  as  to  defects  in  the  estate  itself. 
Both  law  and  equity  require  the  vendor  to  deliver  to  the 
purchaser  the  instrument  by  which  the  incumbrances 
were  created,  or  on  which  the  defects  arise;  or  to  ac- 
quaint him  with  the  facts,  if  they  do  not  appear  on  the 
title-deeds.     If  a  vendor  neglect  this,  he  is  guilty  of  a 

(r)  Burrowes  v.  Lock,  10  Ves.  jun.  470,  per  Sir  Wm.  Grant, 
(s)  See  Vernon  v.  Keys,  12  East,  632. 
(0  See  2  Bro.  C.  C.  420. 

(m)  See  Howard  v.  Hopkyns,  2  Atk.  371  ;  Young  v.  Clerk,  Prec. 
Cha.  638. 

(x)  Per  Lord  Eldon,  1  Jac.  178. 
{y)  Turner  r.  Harvey,  1  Jac.  169. 


INTRODUCTION.  7 

direct  fraud,  which  the  purchaser,  however  vigilant,  has 
no  means  of  discovering  :  and  Lord  Hardwicke  laid  it 
down(r),  "  that  even  if  an  attorney  of  a  vendor  of  an 
estate,  knowing  of  incumbrances  thereon,  treat  for  his 
client  in  the  sale  thereof,  without  disclosing  them  to  the 
purchaser  or  contractor,  knowing  him  a  stranger  thereto, 
but  represents  it  so  as  to  induce  a  buyer  to  trust  his 
money  upon  it,  a  remedy  lies  against  him  in  equity(a)  : 
to  which  principle  it  is  necessary  for  the  court  to  adhere, 
to  preserve  integrity  and  fair  dealing  between  man  and 
man ;  most  transactions  being  by  the  intervention  of  an 
attorney  or  solicitor." 

The  same  observation  applies,  and  indeed  with  much 
greater  force,  to  the  attorney  or  agent  of  the  purchaser. 
It  can  seldom  happen  that  the  attorney  or  agent  of  the 
purchaser  is  conusant  of  any  incumbrance  on  the  estate 
intended  to  be  purchased,  unless  he  be  employed  by 
both  parties  ;  which  the  same  person  frequently  is,  in  order 
to  save  expense.  This  practice  has  been  discountenanced 
by  the  courts(6),  and  is  often  productive  of  the  most 
serious  consequences  ;  for  it  not  rarely  happens,  that  there 
are  incumbrances  on  an  estate  which  can  be  sustained 
in  equity  only,  and  which  will  not  bind  a  purchaser  who 
obtains  the  legal  estate,  unless  he  had  notice  of  them 
previously  to  completing  his  purchase.  Now  noticc(c) 
to  an  agent,  although  one  concerned  for  both  parties,  is 
treated  in  equity  as  notice  to  the  purchaser  himself;  and, 
therefore,  if  the  attorney  know  of  any  equitable  incum- 
brance, the  purchaser  will  be  bound  by  it,  although  he 
himself  was  not  aware  of  its  existence. 

(z)  Per  liord  Hardwicke,  1  Ves.  96;  and  see  6  Ves.  jun.  193; 
liuriowes  v.  Lock,  10  Yes.  jun.  470  ;  and  Bowles  v.  Stewart,  1  Sch. 
and  Lof.  227. 

(«)  It  seems  clear  that  relief  might  now  be  obtained  at  law. 

ib)  See  6  Ves.  jun.  631,  n. 

(c)  Scetn/ra,  ch.  17. 


INTRODUCTION. 


And  by  these  means,  a  purchaser  may  even  deprive 
himself  of  the  benefit  to  be  derived  from  the  estate  lying 
in  a  register  county :  the  register  may  be  searched,  and 
no  incumbrance  appear  ;  yet,  if  the  attorney  have  notice 
of  any  unregistered  incumbrance,  equity  will  assist  the 
incumbrancer  in  establishing  his  demand  against  the  pur- 
chaser(6Z). 

Another  powerful  reason  why  a  purchaser  should  not 
employ  the  vendor's  attorney  is,  that  if  the  vendor  be  guilty 
of  a  fraud  in  the  sale  of  the  estate,  to  which  the  attorney 
is  privy,  the  purchaser,  although  it  be  proved  that  he  was 
innocent,  will  be  responsible  for  the  misconduct  of  his 
agent(e).  In  one  case^/}?  a  purchaser  lost  an  estate,  for 
which  he  gave  nearly  8,000/.,  merely  by  employing  the 
vendor's  attorney,  who  was  privy  to  a  fraudulent  disposi- 
tion of  the  purchase  money. 

But  it  has  been  decided  that  the  grantor  of  an  annuity 
is  not  bound  to  lay  open  to  the  intended  grantee  all  the 
circumstances  of  his  situation  :  he  is  only  bound  to  give 
honest  answers  to  questions  put  to  him  by  the  intended 
grantee.  If  the  grantee  employ  the  grantor's  attorney  to 
prepare  the  deeds,  the  mere  preparation  of  the  deeds 
does  not  place  him  in  a  confidential  relation  towards 
the  grantee ;  and  as  the  agent  of  the  grantor  stands  in 
his  situation,  he  is  not  bound  to  do  more  than  his  prin- 
cipal(^). 

With  the  exception  of  a  vendor,  or  his  agent,  sup- 
pressing an  incumbrance,  or  a"  defect  in  the  title,  it  seems 
clear,  that  a  purchaser  cannot  obtain  relief  against  a  ven- 
dor for  any  incumbrance,  or  defect  in  the  title,  to  which 
his  covenants  do  not  extend ;   and    therefore  if   a  pur- 

(d)  See  «!/'■«>  ch.  16, 17. 

(e)  See  Bowles  v.  Stewart,  1  Sch.  &  Lef.  227. 

(/)  Doe  V.  Martin,  4  Term  Rep.  39  :  Hicks  v.  Morant,  3  You.  & 
Jerv.  286  ;  2  Dow  &  Clark.  414. 

(g)  Adamson  v.  Evitt,  2  Russ.  &  Myl.  66. 


INTUODUCTION. 


9 


chaser  neglect  to  have  the  title  investigated,  or  his  coun- 
sel overlook  any  defect  in  it,  it  appears  to  be  without  a 
remedj(/i). 

To  sum  up  the  foregoing  observations, — a  purchaser  is 
entitled  to  relief,  on  account  of  any  latent  defects  in  the 
estate,  or  in  the  title  to  the  estate,  which  were  not  disclosed 
to  him,  and  of  which  the  vendor,  or  his  agent,  was  aware. 
In  addition  to  this  protection  afforded  him  by  the  law, 
a  provident  purchaser  will  examine  and  ascertain  the 
quality  and  value  of  the  estate,  and  not  trust  to  the  de- 
scription and  representation  of  the  vendor  or  his  agents  ; 
he  will  employ  an  agent  and  attorney  not  concerned  for 
the  vendor,  and  will  have  the  title  to  the  estate  inspected 
hy  counsel(I). 

Where  it  is  stated  upon  a  sale,  even  by  auction,  that  the 
estate  is  in  lease,  and  there  is  no  misrepresentation,  the  pur- 
chaser will  not  be  entitled  to  any  compensation,  although 
there  are  covenants  in  the  lease  contrary  to  the  custom  of 
the  country ;  because,  whoever  buys  with  notice  of  a  lease, 
is  held  conusant  of  all  its  contents(z).  This  rule,  it  should 
seem,  ought,  as  between  a  vendor  and  purchaser,  to  have 
been  confined  to  a  contract  actually  executed  by  the  con- 
veyance of  the  estate  and  payment  of  the  purchase-money  ; 
but  as  the  point  has  been  thus  decided,  no  person  having 

(A)   See  post,  ch.  9. 

(0  Hall  V.  Smith,  Rolls,  IS  Dec.  1807,  MS.  ;  S.  C.  14  Ves.  jim. 
426  ;  Walter  v.  Maunde,  1  Jac.  &  Walk.  181 ;  Bairaud  v.  Archer,  2 
Sim.  437. 


(I)  This  can  seldom  be  efTectually  done,  unless  the  abstract  be  care- 
fully compared  with  the  title-deeds :  in  doing  which,  the  attention 
should  be  particularly  directed  to  the  descriptions  of  the  parties,  the 
recitals,  the  parcels,  and  the  covenants  for  quiet  enjoyment,  free  from 
incumbrances ;  which  frequently  lead  to  incumbrances  and  facts  which 
have  been  suppressed.  This  should  be  particularly  attended  to,  as  a 
purchaser  is  bound  by  every  deed  or  fact,  to  which  an  instrument  in 
his  possession  leads,  by  recital  or  description.     See  j)os/,  cli.  Hi. 

VOL.    I.  2 


10 


INTRODUCTION. 


notice  of  any  lease,  or  that  the  estate  is  in  the  occupation 
of  tenants,  should  sign  a  contract  for  purchase  of  the  estate 
without  first  seeing  the  leases,  unless  the  vendor  will  sti- 
pulate that  they  contain  such  covenants  only  as  are  jus- 
tified by  the  custom  of  the  country. 

With  respect  to  incumbrances,  it  remains  to  remark, 
that  if  a  purchaser  suspect  any  person  has  a  claim  on  the 
estate  which  he  has  contracted  to  buy,  he  should  inquire 
the  fact  of  him,  at  the  same  time  stating  that  he  intends  to 
purchase  the  estate ;  and  if  the  person  of  whom  the  inquiry 
is  made  has  an  incumbrance  on  the  estate,  and  deny  it, 
equity  would  not  afterwards  permit  him  to  enforce  his 
demand  against  the  purchaserCjJ. 

The  inquiry  should  be  made  before  proper  witnesses ; 
and  as  a  witness  may  refresh  his  memory  by  looking  at 
any  paper  if  he  can  afterwards  swear  to  the  facts  from  his 
own  memory,  it  seems  advisable  that  the  witnesses  should 
take  a  note  of  what  passes(/c). 

Where  difficulties  arise  in  making  out  a  good  title,  the 
purchaser  should  not  take  possession  of  the  estate  until 
every  obstacle  is  removed.  Purchasers  frequently  take 
this  step,  under  an  impression,  that  it  gives  them  an  ad- 
vantage over  the  vendor ;  but  this  is  a  false  notion  ;  such  a 
measure  would,  in  many  cases,  be  deemed  an  acceptance  of 
the  title (/),  or  would  at  least  be  a  ground  to  leave  it  to 
a  jury,  to  consider  whether  the  party  had  not  taken  pos- 
session with  an  intention  to  wave  all  objections.  Where 
a  purchaser,  after  delivery  to  him  of  the  abstract,  which 
disclosed  a  reservation  of  a  right  of  sporting  not  noticed  in 

(j)  Ibbetson  v.  Rhodes,  2  Vein.  554  ;  Amy's  case,  2  Cha.  Ca.  128, 
cited. 

{h)  See  Doc  r.  Peikins,  3  Term  Rep.  749,  and  the  cases  there  cit- 
ed ;  Burrough  v.  Martin,  2  Camp.  112. 

(I)  See  3  P.  Wms.  193  ;  Calcraft  v.  Roebuck,  1  Yes.  jun.  226  ;  12 
Ves.  jun.  27  ;  and  Vancouver  v.  Bliss,  1 1  Ves.  jun.  464. 


INTRODUCTION. 


11 


the  particulars  bj  which  he  purchased,  upon  his  applica- 
tion was  let  into  possession,  and  paid  the  greater  part  of 
the  purchase-money,  without  objecting  to  the  right  re- 
served, and  apologized  for  not  sending  the  draft  of  the 
conveyance,  and  afterwards  raised  the  objection,  he  was 
held  bound  by  his  conduct,  which  was  considered  as  a 
waver  of  the  objection  ;  and  although  a  clerk  of  the  seller's 
solicitor  wrote  in  answer  to  the  purchaser's  application 
for  compensation,  that  a  reasonable  compensation  would 
be  allowed,  yet  this  was  not  deemed  binding,  as  he  had 
no  authority  to  make  such  an  offer (?/i). 

If,  however,  the  objections  to  the  title  be  remediable, 
and  the  purchaser  be  desirous  tp  enter  on  the*  estate,  he 
may  in  most  cases  venture  to  do  so  ;  provided  the  vendor 
will  sign  a  memorandum,  importing  that  the  possession 
taken  by  the  purchaser,  shall  not  be  deemed  a  waver  of 
the  objections  to  the  title,  or  be  made  a  ground  for  com- 
pelling him  to  pay  the  purchase-money  into  court,  in  case 
a  bill  be  filed,  before  the  conveyance  to  him  is  executed. 
And  a  purchaser  may,  with  the  concurrence  of  the  vendor, 
safely  take  possession  of  the  estate  at  the  time  the  contract 
is  entered  into,  as  he  cannot  be  held  to  have  waved  ob- 
jections, of  which  he  was  not  aware  ;  and  if  the  purchase 
cannot  be  completed  on  account  of  objections  to  the  title, 
he  will  not  be  bound  to  pay  any  rent  for  the  estate,  un- 
less perhaps  the  occupation  of  it  has  been  beneficial  to 
him(7«). 

A  purchaser  of  any  equitable  right,  of  which  immediate 
possession  cannot  be  obtained,  should,  previously  to  com- 
pleting his  contract,  inquire  of  the  trustee,  in  whom  the 
property  is  vested,  whether  it  is  liable  to  any  incumbrance. 
If  the  trustee  make  a  false  representation,  equity  would 

(m)   Burnell  v.  Brown,  1  Jac.  &  Walk.  168. 

(n)  Hearne  v.  Tomlin,  Peake's  Ca.  192  ;  see  Kirtland  v.  Pounsetl, 
2  Taunt.  145  ;  Stevens  v.  Guppy,  3  Russ.  171. 


12  INTRODUCTION. 

compel  him  to  make  good  the  loss  sustained  by  the  pur- 
chaser, ill  consequence  of  the  fraudulent  statement(o). 
When  the  contract  is  completed,  the  purchaser  should 
give  notice  of  the  sale  to  the  trustee.  The  notice  would 
certainly  affect  the  conscience  of  the  trustee,  so  as  to  make 
him  liable  in  equity,  should  he  convey  the  legal  estate  to 
any  subsequent  purchaser ;  and  it  would  also  give  the 
purchaser  a  priority  over  any  former  purchaser,  or  in- 
cumbrancer, who  had  neglected  the  same  precaution (^). 

Auctioneers  usually  prepare  the  particulars  and  con- 
ditions of  sale  ;  but  this  a  vendor  should  not  permit,  as 
continual  disputes  arise  from  the  mis-statements  conse- 
quent upon  their  ignorance  of  the  title  to  the  estate. 

Where  an  estate  has  been  in  a  family  for  a  long  time, 
or  the  title  has  not  been  recently  investigated,  it  will  be 
advisable  for  the  owner  to  have  an  abstract  of  his  title 
submitted  to  counsel,  and  any  objections  which  occur  to  it 
cleared  up,  previously  to  a  contract  being  entered  into  for 
sale  of  the  estate.  By  this  precaution,  the  vendor  will  pre- 
vent any  delay  on  his  part,  which  might  impede  the  sale 
from  being  carried  into  effect  by  the  time  stipulated  ;  and 
will,  in  many  cases,  avoid  the  expense  necessarily  attend- 
ing tedious  discussions  of  a  title.  Another  advantage  is, 
that  if  there  should  be  any  defect  in  the  title  which  can- 
not be  cured,  it  would  be  known  only  to  the  agents  and 
counsel  of  the  vendor.  It  is  of  the  utmost  importance 
to  keep  defects  in  a  title  from  the  knowledge  of  persons 
not  concerned  for  the  owner.  It  has  frequently  hap- 
pened, that  persons  concerned  for  purchasers,  have  com- 
municated fatal  defects  in  a  vendor's  title,  to  the  person 
interested  in  taking  advantage  of  them,  by  which  many- 
titles  have  been  disturbed. 


(o)  Burrowes  v.  Lock,  10  Ves.  jun.  470, 
(jo)   Vide  infra,  ch.  16. 


[  13] 
CHAPTER  I. 

OF  SALES  BY  AUCTION  AND  PRIVATE  CONTRACT. 


1.  Bv  three  acts(a)  of  his  late  Majesty's  reign,  a' duty 
is  imposed  of  Id.  for  every  twenty  shillings  of  the  pur- 
chase-money, which  shall  arise  or  be  payable  by  virtue  of 
any  sale  at  auction  in  Great  Britain,  of  any  interest  in 
i  .  possession  or  reversion,  in  any  freehold,  copyhold,  or 
leasehold  lands,  tenements,  houses,  or  hereditaments. 

But  sales  by  way  of  auction,  of  estates  under  the  decree 
of  the  Court  of  Chancery,  or  Exchequer,  in  England  ;  or 
of  the  Court  of  Session,  or  Exchequer,  in  Scotland(6), 
are  not  liable  to  the  duty  ;  nor  do  the  acts  extend  to  auc- 
tions held  on  the  account  of  the  lord  or  lady  of  any  manor, 
for  granting  copyhold  or  customary  lands,  for  lives  or 
years ;  or  to  any  auction  held  for  the  letting  any  estate 
for  lives  or  years  to  be  created  by  the  persons  on  whose 
accounts  such  auctions  shall  be  held(c)(I)  :  neither  does 
the  duty  attach  upon  the  f)urchase-money  of  any  estate 
sold  under  a  sheriff's  authority,  for  the  benefit  of  creditors, 
in  execution  of  any  judgment ;  nor  to  the  purchase-money 
of  any  bankrupt's  estate,  sold  by  order  of  the  assignees 
under  any  commission  of  bankruptcy (c^).  And,  lastly, 
no  auction  duty  is  payable  in  respect  of  monies  produced 

(a)  27  Geo.   III.   c.    13.   s.  36;   37  Geo.  III.  c.  14  ;  and  45  Geo. 
If  I.  c.  30. 

{b)   19  Geo.  III.  c.  56.  s.  13. 
{c)  Id.  s.  14. 
{d)  Id.  s.  15. 

(I)  This  mode  of  letting  estates,  is  adopted  by  the  City  of  London, 
and  some  other  public  bodies. 


14  OF  SALES  BY  AUCTION 

by  sale  of  estates,  sold  by  auction,  for  the  redemption  of 
land  tax(e). 

By  an  order  of  Lord  Rosslyn's(/),  it  is  directed,  that 
upon  application  by  a  mortgagee  of  a  bankrupt's  estate, 
the  mortgaged  estate  shall  be  sold  before  the  commis- 
sioners,  or  by  public  auction,  if  they  shall  think  fit.  And 
it  has  been  decided(^),  that  a  sale  of  a  mortgaged  estate 
by  auction,  under  this  order,  is  liable  to  the  auction  duty, 
and  is  not  within  the  exception  in  the  acts  of  sales  of 
bankrupts  estates  hij  the  order  of  the  assignees.  This  de- 
cision was  made  at  nisi  prius,  and,  perhaps,  cannot  be 
supported.  The  Legislature  intended  that  the  creditors 
of  bankrupts  should  have  the  advantage  of  selling  the 
estates  by  auction  without  being  charged  with  the  auction 
duty.  Now  this  intention  is,  in  the  case  under  consider- 
ation, clearly  subverted  by  the  decision  in  Coare  v.  Creed. 
The  argument  was,  that  the  sale  was  by  the  mortgagee, 
and  so  not  part  of  the  bankrupt's  estate.  But  if  the 
money  produced  by  sale  of  the  pledge  is  insufficient  to 
cover  the  mortgagee's  debt,  he  of  course  resorts  to  the 
general  effects  for  a  dividend  on  the  residue.  If  the 
pledge  produce  more,  the  surplus  sinks  into  the  general 
fund ;  so  that  assuming,  as  the  Legislature  clearly  did, 
that  the  auction  duty  is  in  substance  a  charge  on  the 
land,  it  in  this  case  takes  so  much  from  the  bankrupt's 
property,  distributable  for  the  benefit  of  his  creditors.  It 
was  considered  to  be  clear,  however,  that  where  the  estate 
was  sold  by  order  of  the  assignees,  with  the  consent  of 
the  mortgagee,  no  duty  would  be  payable.  But  it  has 
been  decided,  that  a  sale  by  assignees  of  an  estate  in  fee, 
which  was  in  mortgage  for  a  term  of  years,  was  liable  to 
the  auction  duty,  because  the  assignees  sold  the  whole 

(e)  42  Geo.  III.  c.  116.  s.  113. 

(/)  4  Bro.  C.  C.  at  the  end. 

(g)  Coare  v.  Creed,  2  Esp.  Ca.  699. 


AND  PRIVATE  CONTRACT.  J^ 

estate,  and  they  had  only  the  equity  of  redemption(/i). 
But  the  act  of  Parliament  draws  no  such  distinction. 
Most  bankrupts  estates  are  in  mortgage  ;  and  the  excep- 
tion would  indeed  be  illusory,  if  it  only  extended  to  estates 
upon  which  there  was  no  incumbrance.  The  simple 
question,  however,  is,  whether  such  a  sale  is  not  a  bona 
fide  sale  by  order  of  the  assignees  ?  It  seems,  indeed, 
.  to  have  been  considered,  that  the  mortgagee  had  the  pro- 
perty, and  the  bankrupt  had  only  the  equity  of  redemp- 
tion. But,  even  at  law,  the  bankrupt  had  the  fee-simple 
in  reversion  expectant  upon  the  term  of  years  in  the 
mortgage,  and  in  eqjiity  he  was  owner  of  the  fee  in  pos- 
session, subject  to  the  debt.  The  case  of  the  King  v. 
Abbott  went  far  beyond  the  case  of  Coare  v.  Creed.  To 
avoid  the  effect  of  these  decisions,  assignees  must,  in 
future,  sell  the  estate  subject  to  the  mortgage.  The  pur- 
chaser must,  of  course,  pay  off  the  mortgage  ;  and  there- 
fore, by  the  insertion  of  a  few  words  in  the  particulars, 
the  creditors  may  obtain  the  relief  which  the  Legislature 
intended  to  grant  them. 

The  words  of  the  late  act(i)  are,  that  "  all  sales  of 
any  real  or  personal  estate  of  any  bankrupt  or  bankrupts 
shall  not  be  liable  to  any  auction  duty,"  which  may  pro- 
bably remove  all  difficulty  upon  this  point.  Since  these 
observations  were  published,  the  point  came  before  the 
Court  of  Exchequer  upon  a  sale  by  auction,  by  assignees, 
of  the  absolute  interest  in  fee  of  an  estate  of  the  bank- 
rupt in  mortgage  ;  and  it  was  held,  that  the  duty  was 
not  payable(y).  Upon  a  writ  of  error  in  the  Exchequer 
Chamber  the  judges  were  divided  in  opinion,  and  the 
judgment  below  was  affirmed,  in  order  that  the  question 

(/i)  Rex  V.  Abbott,  Exchcq.  Mich.  T.  1816,  MS. ;  3  Price,  178. 

(t)   6  Geo.  IV.  c.  16.  s.  98. 

{j)  Rex  V.  Winstanley,  3  You.  &  Jerv.  124.  2  Dow  &  Clark,  302. 


16 


OF  SALES  BY  AUCTION 


might  be  disposed  of  in  the  House  of  Lords(A:),  and  there 
the  judgment  has  been  affirmed(/).  Two  questions  were 
put  to  the  judges:  1st.  whether,  when  a  trader,  having 
real  estates  under  mortgage,  becomes  a  bankrupt,  and  the 
whole  interests  in  the  estates  are  sold,  by  order  of  the  as- 
signees, for  the  benefit  of  the  creditors,  and  no  concurrence 
on  the  part  of  the  mortgagees  appears,  the  auction  duty 
is  payable  on  the  whole  of  the  sum  received  for  the 
estates,  or  on  any  and  what  part  of  it :  2dly.  AVhether^ 
when  a  trader,  having  estates  in  mortgage,  afterwards 
conveys  the  estates  to  trustees,  and  then  becomes  bank- 
rupt, and  the  whole  interest  in  the  estates  are  sold  by  the 
assignees,  with  the  concurrence  of  the  trustees,  it  not  ap- 
pearing that  the  mortgagees  were  consulted,  the  auction 
duty  is  payable  on  the  whole  or  any  part  of  the  sum  re- 
ceived for  the  estates. 

Mr.  Justice  Bayley  delivered  the  unanimous  opinion  of 
the  judges,  in  answer  to  both  questions,  that  the  auction 
duty  was  not  payable  on  the  whole  or  any  part  of  the 
sum  ;  observing,  that  if  this  had  been  a  sale  by  the  mort- 
gagee, the  matter  might  have  stood  on  a  different  footing. 
Lord  Wynford  observed  that  he  was  in  the  court  below 
when  this  case  was  decided  there,  and  he  differed  in 
opinion  from  the  rest  of  the  judges.  He  was  happy  to 
say,  however,  that,  upon  fuller  consideration,  he  was  con- 
vinced that  they  were  right  and  he  w^as  wrong.  His 
puzzle  was  about  the  word  estate,  and  whether  the  estate 
in  question,  being  in  mortgage,  could  be  considered  as 
the  estate  of  the  bankrupt.  But  he  was  now  satisfied 
that,  speaking  in  ordinary  language,  this  is  the  estate  of 
the  bankrupt,  clogged  with  the  debt  of  the  creditor. 
The  mortgage  is  merely  a  security,  and  every  other  in- 

{k)   3  You.  &  Jerv.  126. 

(/)  2  Crompt.  &  Jerv.  434  ;  2  Dow  &  Clark,  302. 


AND  PRIVATE  CONTRACT. 


17 


terest  is  in  the  bankrupt ;  and  therefore,  upon  a  sale  of 
the  estate  by  the  commissioners  or  assignees,  the  sale  is 
exempt,  under  these  acts  of  Parliament,  from  payment  of 
the  auction  duty.  Suppose  the  bankrupt's  funds  should 
not  be  sufficient  to  pay  the  creditors,  after  paying  off  the 
mortgage,  the  loss  must  fall  on  the  bankrupt's  funds. 
Suppose  the  whole  subject  should  be  s\a  allowed  up  by 
the  mortgage,  the  mortgagee  might  say  that  he  derived 
no  advantage  from  the  sale  beyond  the  mere  payment  of 
his  debt.  Suppose  a  third  case ;  that  the  funds,  after 
payment  of  the  mortgagee  and  the  rest  of  the  creditors, 
should  afford  some  small  surplus  for  the  unfortunate 
bankrupt,  yet  the  sale  being  a  forced  sale,  came  in  prin- 
ciple within  the  exemption  under  these  acts.  He  had 
his  doubts  as  to  the  soundness  of  the  present  judgment, 
looking  to  the  decision  in  the  case  of  the  King  and 
Abbott;  but  he  was  now  satisfied  that  the  judgment 
ought  to  be  affirmed.  Lord  Tenterden  observed  that  he 
entirely  agreed  in  the  opinion  of  the  Judges.  There  was 
some  difference  in  the  language  of  the  different  acts 
relating  to  this  subject,  which  occasioned  some  doubts; 
but  the  words  of  the  statute  of  19  Geo.  3.  c.  56.  s.  15. 
are,  "  that  nothing  therein  contained  shall  extend  to 
charge  with  auction  duty  any  estate  or  effects  of  bankrupts 
sold  by  order  of  the  assignees  under  a  commission  of 
bankruptcy."  The  words  of  the  43  Geo.  3.  are  much 
the  same ;  and  then  came  the  case  of  the  King  and 
Abbott.  Then  followed  the  Act  of  the  6  Geo.  4,  which 
enacted,  "  that  all  sales  of  any  real  or  personal  estate  of 
any  bankrupt  or  bankrupts  shall  not  be  liable  to  any 
auction  duty ;"  and  the  question  is  whether  the  estate 
sold  in  this  case  was  the  estate  of  the  bankrupt  within  the 
meaning  of  these  acts.  Now,  when  we  look  at  the  words 
of  an  act  of  Parliament,  which  are  not  applied  to  any 
particular  science  or  art,  we  are  to  construe  them  as  they 

VOL.    1.  3 


18 


OF  SALES  BY  AUCTION 


are  understood  in  common  language  ;  and  in  ordinary 
speech,  the  estate,  although  mortgaged,  is  still  considered 
as  the  estate  of  the  mortgagor,  and  the  interest  of  the 
mortgagee  as  merely  a  security ;  and,  therefore,  it  ap- 
peared to  him,  that,  according  to  the  true  construction 
of  the  words,  this  was  the  estate  of  the  bankrupt  within 
the  meaning  of  the  act.  If  they  were  to  be  taken  in  any 
other  sense,  the  effect  would  be  to  diminish  the  bank- 
rupt's estate  applicable  to  the  payment  of  the  creditors, 
by  the  amount  of  the  duty.  Upon  the  whole,  it  appeared 
to  him,  that  according  to  the  intention  and  the  words  of 
the  act  of  the  6  Geo.  4,  no  auction  duty  was  payable  on 
estates  sold  under  such  circumstances  as  the  present. 

The  point  therefore  is  decided  against  the  liability  to 
duty  where  even  the  whole  estate  is  sold,  provided  the 
mortgagee  do  not  join  in  the  sale  ;  of  course,  his  concur- 
rence in  the  conveyance  will  not  render  the  sale  liable. 
The  point  is  still  open  where  the  mortgagee  does  concur 
in  the  sale ;  and  therefore  where  the  property  is  sufficient 
in  value  to  pay  off  the  mortgage,  the  sale  should  be  by 
the  assignees  alone. 

The  auctioneer,  agent,  or  seller  by  commission,  is  bound 
to  pay  the  auction  duty,  which  he  may  deduct  out  of  the 
money  he  receives  at  the  sale.  If  he  receive  none,  he 
may  recover  it  from  the  vendor  by  action. 

But  if  the  owner  of  estates  sold  by  auction,  or  any  other 
person  on  his  behalf,  buy  in  the  same,  without  fraud  or 
collusion,  no  auction  duty  will  become  payable(m)  ;  pro- 
vided notice  be  given  in  writing(w)  to  the  auctioneer  be- 
fore such  bidding,  signed  by  the  owner  and  the  person 
intended  to  be  the  bidder,  of  the  latter  being  appointed 
by  the  former,  and  having  agreed  accordingly  to  bid  at  the 
sale  for  his  use(o)  ;  and  provided   the  delivery  of  such 

(m)  19  Geo.  III.  c.  56.  s.  12. 
(n)  28  Geo.  III.  c.  37.  s.  20. 
(o)   See  a  form  of  such  notice,  Appendix,  No.  1. 


AND  PRIVATE  CONTRACT. 


19 


notice  be  verified  by  the  oath  of  the  auctioneer,  as  also 
the  fairness  of  the  transaction,  to  the  best  of  his  know- 
ledge. 

Neither  will  the  duty  be  payable  where  the  estate  is 
bought  in  by,  or  by  the  order  of  the  steward(p)  or  known 
agent  of  tlie  owner,  actually  employed  in  the  manage- 
ment of  the  sale  of  such  estate  ;  but  notice  in  writing  of 
his  intention  must  be  given  by  the  steward  or  agent,  if  he 
himself  bid,  or  by  him  and  the  bidder,  if  he  appoint  a 
person  to  bid(^)  ;  and  the  delivery  of  such  notice  must 
be  verified  in  the  same  manner  as  the  delivery  of  a  notice 
given  by  the  owner.  And  to  exempt  a  vendor  from  pay- 
ment of  the  duty,  every  notice  must,  at  the  time  appoint- 
ed by  law  for  the  auctioneer's  passing  his  account  of  the 
sale,  be  produced  by  the  auctioneer  to  the  officer  author- 
ized to  pass  the  account  of  such  sale ;  and  also  be  left 
with  the  olficer(r). 

It  is  not  necessary  that  the  sale  should  be  a  regular 
auction.  The  acts  apply  to  every  mode  of  sale,  whereby 
the  highest  bidder  is  deemed  to  be  the  purchaser.  There- 
fore, where  after  an  auction  at  which  there  was  no  bid- 
ding, the  seller's  agent  stated  that  he  should  be  ready  to 
treat  for  the  sale  by  private  bargain,  and  the  meeting 
broke  up  ;  and  the  agent  shortly  afterwards  went  into  a 
private  room,  with  several  of  the  persons  who  attended 
the  sale,  and  he  stated  that  the  highest  offer  above  50,000/. 
would  be  accepted  ;  and  offers  were  accordingly  made  to 
him,  and  he  having  opened  them,  said  that  the  one  which 
was  the  highest  would  be  accepted,  provided  the  terms  of 
payment  could  be  adjusted,  and  these  terms  having  been  ad- 
justed, the  bargain  was  concluded  the  folloioing  day ;  this 

{p)   42  Geo.  III.  c.  93.  s.  1. 

{q)  See  forms  of  such  notices,  Appendix,  Nos.  2  and  3. 

(r)  42  Geo.  III.  c.  93.  s.  2. 


QQ  OF  SALES  BY  AUCTION 

was  held  to  be  within  the  act.  The  agent  put  himself 
under  an  obligation  to  treat  with  all  the  persons  assem- 
bled, and  to  give  the  estate  to  the  highest  bidder.  The 
question  was  not,  whether  this  was  what  was  usually 
called  a  sale  by  auction,  but  whether  for  the  purpose  of 
this  act  every  thing  must  not  be  considered  as  such  a  sale 
where  the  contract  was  with  various  persons,  wdth  an 
engagement  to  let  the  highest  bidder  be  the  purchaser. 
He  might  have  taken  any  individual  he  pleased  and  con- 
cluded a  bargain  with  him  ;  that  would  have  been  a  trans- 
action of  a  different  kind  :  but  here  he  treated  with  a 
number,  and  came  under  an  engagement  to  accept  the 
highest  offer (5). 

Any  thing  in  the  nature  of  a  bidding  is  \a  ithin  the  acts ; 
and  therefore  where  the  owner  put  the  price  under  a 
candlestick  in  the  room  (which  is  called  a  dumb  bidding), 
and  it  was  agreed  that  no  bidding  should  avail  if  not 
equal  to  that,  it  was  holden(^)  to  be  within  the  acts  ;  as 
being  in  effect  an  actual  bidding  of  so  much,  for  the  pur- 
pose of  superseding  smaller  biddings  at  the  auction. 

Upon  such  a  sale  by  candlestick  biddings,  as  they  are 
denominated,  where  the  several  bidders  do  not  know 
what  the  others  have  offered,  a  bidding  of  so  much  per 
cent,  more  than  any  other  person  has  offered  would  be 
binding  on  the  person  who  makes  h(u). 

So  biddings  by  several  persons  of  sums  marked  upon  a 
paper  are  within  the  act(i;). 

So  in  the  case  of  a  female  auctioneer  who  continued 
silent  during  the  whole  time  of  the  sale,  but  whenever 
any  one  bid,  she  gave   him  a  glass  of  brandy :  the   sale 

(s)  Walker  v.  Advocate-General,  1  Dow,  111. 

(/)   See  the  case  cited,  3  East,  340.     Capp  r.  Tophani,  infra. 

(u)   3  Mer.  483,  pey  Lord  Eldon. 

(r)   Attorney-General  r.  Taylor,  13  Price,  636. 


AND  PRIVATE  CONTRACT. 


21 


broke  up,  and  in  a  private  room  he  that  got  the  last  glass 
of  brandy  was  declared  to  be  the  purchaser.  This  was 
decided  to  be  an  auction(i(;). 

But  to  bring  a  bidding  within  the  acts,  the  sum  must 
be  named  by  the  party  eo  ijituitu,  with  a  view  to  the  pur- 
chase of  the  estate.  Therefore,  in  the  case  of  Cruso  v. 
Crisp(a:),  it  was  decided,  that  piiitiiig  vp  an  estate  in  lots 
at  certain  prices  was  not  a  bidding  within  the  acts ;  but 
this  has  since  been  doubted  by  Lord  Eldon(y)  ;  and 
althouo;h  it  would  be  difficult  to  hold  the  transaction  to 
be  a  sale  within  the  act,  yet  of  course,  although  the  owner 
intends  only  to  put  up  the  estate  at  a  certain  price,  and 
not  to  bid  for  it  in  case  of  an  advance,  a  previous  notice 
of  his  intention  should  be  given. 

If  an  estate  be  bought  in  by  the  owner,  and  proper 
notices  were  not  given  of  his  intention  to  bid,  the  sale 
will  be  held  real,  and  the  duty  must  be  paid,  however 
fair  the  transaction  may  be.  The  duty  is  made  a  charge 
on  the  auctioneer,  which  he  must  pay  if  the  proper  notices 
were  not  given.  It  is  not  given  by  way  o^ penally.  In 
one  case,  an  auctioneer  who  had  neglected  to  require  pro- 
per notices  was  compelled  to  pay  5  or  6,000/.  out  of  his 
own  pocket  for  the  duty,  although  he  had  not  received 
any  part  of  it  from  the  owners,  nor  had  charged  any  com- 
mission, as  the  estates  were  not  actually  sold(z). 

And  a  statement  by  an  auctioneer  to  the  vendor  or  his 
agent,  that  he  has  done  what  is  necessary  to  avoid  pay- 
ment of  the  duty,  will  amount  to  a  warranty,  although 
the  duty  become  payable,  not  by  the  default,  but  by  the 
ignorance  or  mistake  of  the  auctioneer. 

{v})  1  Dow,  115. 
(.r)  3  East,  337. 
((/)   iDow,  114. 

{z)  Christie  u.  Attorney-General,  6  Bro.  P.  C.  by  Toml.  620 ;  see 
3  Yes.  Jun.  625,  n. 


22 


OF  SALES  BY  AUCTION 


Thus,  in  the  late  case  of  Capp  v.  Tophani(«)  an  auc- 
tioneer put  up  an  estate,  and  by  the  conditions  of  sale 
reserved  a  dumb  bidding(6)  to  the  owner,  which  was  his 
mode  of  saving  the  payment  of  the  auction  duty.  The 
owner's  solicitor,  with  the  privity  of  the  auctioneer, 
placed  a  ticket  containing  the  price  in  figures,  under  a 
candlestick,  on  a  table  in  the  auction-room.  A  person 
who  attended  on  behalf  of  the  owner  asked  the  auctioneer 
if  he  had  taken  the  proper  precaution  to  avoid  the  duty 
if  there  was  no  sale.  The  auctioneer  said,  it  was  his 
mode  to  fix  a  price  under  the  candlestick,  and  if  the  bid- 
ding should  not  come  up  to  the  price  there  was  no  sale  or 
duty.  There  were  several  biddings,  but  under  the  price 
fixed,  and  the  auctioneer  was  compelled  to  pay  the 
duty(c).  He  then  brought  an  auction  against  the  owner 
for  recovery  of  the  money  as  paid  to  his  use ;  but  the 
statements  by  the  auctioneer  were  holden  to  amount  to  a 
warranty,  and  judgment  was  given  for  the  defendant. 
Lord  Ellenborough  said,  that  even  if  there  was  no  war- 
ranty on  the  part  of  the  auctioneer,  and  it  was  only  a 
mutual  error  between  him  and  the  vendor,  he  could  not 
call  upon  his  companion  in  error  for  a  contribution(</). 
So  that  in  cases  of  this  nature  the  burden  will  remain 
upon  the  person  upon  whom  it  is  charged.  And  it  even 
seems  to  have  been  considered,  that  if  an  auctioneer, 
through  ignorance,  adopt  an  improper  mode  of  saving 
the  duty,  upon  an  undertaking  by  the  seller  to  save  him 
harmless,  the  duty  must  be  paid  by  the  auctioneer,  and 
he  cannot  recover  under  the  undertaking,  because  it  is 
illegal  to  indemnify  against  penalties(e).     But  to  this  it 

{a)   6  East,  392  ;  2  Smith,  443. 
(6)    Vide  supra. 

(c)  See  Christie  t;.  Attorney-General,  uhi  sup. 

(d)  See  Farebrother  v.  Ansley,  1  Camp.  N.  P.  343.  Jones  r. 
Nanney,  13  Price,  76. 

(c)   Ouen  V.  Parry,  Sitt.  West.  Dec.  6,  cor.  Lord  Ellenborough. 


AND  PRIVATE  CONTRACT. 


23 


may  be  objected,  that  the  duty  attaches  as  a  charge,  and 
is  not  imposed  as  a  penalty^/}* 

If  the  vendor's  title  prove  bad,  the  auction  duty  will 
be  allowed  ;  provided  complaint  thereof  be  made  before 
the  Commissioners  of  Excise,  or  two  justices  of  the  peace 
within  whose  jurisdiction  such  sale  was  made(^j,  within 
twelve  calendar  months  after  the  sale,  if  the  same  shall 
be  rendered  void  in  that  time  ;  or  otherwise  within  three 
months  after  the  discovery  of  the  owner  having  no 
tit\e(h).  But  the  commissioners  will  not  allow  the  duty 
unless  they  think  that  the  vendor  has  used  his  utmost 
exertions  to  make  a  good  title.  An  appeal,  however,  lies 
from  the  judgment  of  the  commissioners :  but  as  the 
King  never  pays  costs,  they  fall  upon  the  vendor,  and  in 
many  cases  would  amount  to  more  than  the  duty  itself. 
Where  the  case  is  a  bona  fide  one,  and  the  title  has  been 
rejected,  the  commissioners  are  bound  to  put  a  liberal 
interpretation  on  the  act. 


II.  According  to  Cicero(/),  a  vendor  ought  not  to  ap- 
point a  puffer  to  raise  the  price,  nor  ought  a  purchaser  to 
appoint  a  person  to  depreciate  the  value  of  an  estate  in- 
tended to  be  sold.(l)  And  Huber  lays  it  do\vn(y),  that 
if  a  vendor  employs  a  puffer  he  shall  be  compelled  to  sell 
the  estate  to  the  highest  bona  fide  bidder ;  because  it  is 
against  the  faith  of  the  agreement,  by  which  it  is  stipulat- 
ed that  the  highest  bidder  shall  be  the  buyer. 

( f)  Christie  v.  Attorney-General,  6  Bro.  P.  C.  by  Toml.  520.  ei 
supra. 

{g)   19  Geo.  III.  c.  56.  s.  11. 
(/i)   28  Geo.  III.  c.  37.  s.  19. 
(0   De  Off.  1.  3. 
ij)  Prselectiones,  xviii.  2.  7. 

(1)  Moncrieffv.  Goldsborough,  4  Har.  &  M'Hen.  282.  Trough- 
ton's  Jldm.  V.  Johnson,  2  Haywood's  Rep.  328.  Donaldson  v.  J^VRoij, 
Browne's  Rep.  346. 


24  O*'  SALES  BY  AUCTION 

111  Bexwell  v.  Chrhtie(k),  Lord  Mansfield  and  the 
other  Judges  of  B.  R.  followed  the  rule  of  the  civil  law, 
and  treated  a  private  bidding,  by  or  on  the  behalf  of  the 
vendor,  as  a  fraud  ;  but  the  Legislature,  by  the  subsequent 
statutes  imposing  a  duty  on  sales  of  estates  by  auction, 
seems  to  have  been  of  a  different  opinion,  and  even  to  have 
sanctioned  it.  Lord  Rosslyn,  who  was  present  at  the 
making  of  the  act,  remarked  in  the  case  of  Conolly  v. 
Parsons,  that(/)  the  acts  of  Parliament  go  upon  its  being 
an  usual  thing  and  a  fair  thing  for  the  owner  to  bid.  The 
pressure,  when  the  tax  was  imposed,  was  by  embarrassing 
people,  Avho  chose  to  dispose  of  their  goods  by  auction  if 
they  chose  to  be  purchasers,  by  the  tax  falling  upon  them. 
His  Lordship  added,  that  he  thought  it  would  have  oc- 
curred either  to  Lord  Thurlow  or  to  him,  when  the  ex- 
ception in  favor  of  the  owner  was  proposed,  that  the  case 
would  not  exist,  as  the  owner  could  not  be  a  bidder ;  or 
that,  for  his  attempting  to  do  what  he  could  not  by  law, 
it  would  be  just  that  he  should  pay  the  duty.  It  was 
very  wrong  to  the  public  to  let  that  clause  stand,  if  at  the 
time  it  was  understood  that  the  owner  bidding  was  doing 
an  illegal  thing.  The  acts  do  not  require  an  open  notice, 
but  only  a  private  notice  to  the  auctioneer,  and  an  oath  to 
prevent  the  setting  up  a  bidding  for  the  owner  that  the 
bidder  might  evade  paying  the  duty. 

Lord  Kenyon,  however,  in  the  case  of  Howard  v.  Castle, 
where  the  purchaser  was  the  only  real  bidder,  and  there 
were  several  puffers(wi),  clearly  coincided  with  Lord 
Mansfield's  opinion  ;  and  held,  that  unless  it  was  publicly 
known  that  the  owner  intended  to  bid,  it  was  a  fraud  upon 
the  purchaser,  and  consequently  no  action  w^ould  lie  against 

(k)   H.  16.  Geo.  lil.  Cowp.  395. 
(/)   See  3  Ves.  jun.  628. 

(m)  36  Geo.  Ill ;  6  Term  Rep.  642.  See  Twining  v,  Morris,  2  Bro. 
C.  C.  326  ;  and  see  3  Term  Rep.  93,  95. 


AND  PRIVATE  CONTRACT. 


25 


him  for  non-performance  of  his  agreement.  The  acts  of 
Parliament,  he  thought,  did  not  intend  to  interfere  with 
this  point,  but  to  leave  the  civil  rights  of  mankind  to  be 
judged  of  as  thej  were  before.  And  Grose,  J.  also  ex- 
pressed his  opinion,  that  the  doctrine  was  not  in  the  least 
impeached  bj  the  acts  of  Parliament. 

But  in  the  case  of  Conolly  y.  Parsons(M),  Lord  Rosslyn 
said,  he  fancied  the  foregoing  case  turned  on  the  circum- 
stance that  there  was  no  real  bidder  ;  and  the  person  re- 
fused instantly.  It  was  one  of  those  trap  auctions  which 
are  so  frequent  in  this  city.  The  reasoning  went  large, 
certainly,  and  did  not  at  all  convince  him.  He  said,  he 
should  wish  it  to  undergo  a  re-consideration  ;  for  if  it  was 
law,  it  would  reduce  every  thing  to  a  Dutch  auction,  by 
bidding  downwards(I).  He  felt  vast  difficulty  to  compass 
the  reasoning,  that  a  person  does  not  follow  his  own  judg- 
ment because  other  persons  bid  ;  that  the  judgment  of  one 
person  is  deluded  and  influenced  by  the  biddings  of  others. 

(n)  3  Ves.  jun.  625,  u. 


(I)  A  sale  of  this  nature  is  thus  conducted  :  The  estate  is  put  up  at 
a  high  price,  and  if  nobody  accept  the  offei',  a  lower  is  named,  and  so 
the  sum  first  required  is  gradually  decreased,  till  some  person  close 
with  the  offer.  Thus  there  is  of  necessity  only  one  bidding  for  the 
estate,  a  mode  of  sale  which,  in  this  country,  would  attract  few  bidders. 
In  some  counties  in  England  a  singular  mode  of  sale  of  estates  for 
redemption  of  land-tax  is  adopted  ;  the  auctioneer  states  the  sum  of 
money  wanted,  and  the  number  of  acres  to  be  disposed  of,  and  the 
person  who  will  accept  the  least  quantity  of  land  for  the  sum  required, 
is  declared  the  purchaser ;  so  that  the  persons  bid  downwards,  until 
some  one  name  a  quantity  of  land  less  than  any  other  will  take. 

The  manner  of  conducting  sales  by  auction  of  the  post-horse  duties 
is  at  once  Dutch  and  English.  The  duties  are  put  up  at  a  large  sum, 
named  in  the  particulars,  and  the  sale  is  then  conducted  in  the  same 
manner  as  a  Dutch  auction  :  but  when  any  person  actually  bids,  others 
may  advance  on  that  bidding,  and  the  highest  bidder  is  declared  the 
purchaser  ;  just  as  if  the  sale  had  been  conducted  in  the  usual  way. 

VOL.    I.  4 


26 


OF  SALES  BY  AUCTION 


The  facts  of  tlie  case  of  Conolly  v.  Parsons  do  not  appear 
in  the  report ;  but  I  learn,  that  there  was  a  contest  be- 
tween real  bidders,  after  the  person  employed  to  bid  on 
the  part  of  the  vendors  had  desisted  from  bidding.  The 
suit  was  compromised  by  the  purchaser  paying  a  con- 
siderable sum  of  money  to  the  vendor  to  release  him  from 
the  contract ;  and  consequently  Lord  Rosslyn  did  not  give 
judgment;  but  it  seems  he  was  clearly  of  opinion  that 
the  sale  was  valid. 

And  in  the  later  case  of  Bramley  v.  Alt(o),  where  an 
estate  was  put  up  to  sale  by  public  auction,  and  an  agent 
for  the  vendor  bid  to  151.  an  acre,  without  public  notice 
of  his  intention  to  do  so  ;  and  after  a  contest  with  real  bid- 
ders the  estate  was  bought  at  lOU.  175.  an  acre  ;  Lord 
Alvanley,  then  Master  of  the  Rolls,  decreed  a  specific  per- 
formance with  costs.  And  he  concurred  with  Lord  Rosslyn 
in  considering  the  case  of  Howard  v.  Castle  only  as  a  deci- 
sion, that  where  all  the  bidders  except  the  purchaser  are 
puffers,  the  sale  shall  be  void. 

In  a  subsequent  case(p),  it  appeared  that  assignees 
of  a  bankrupt  had  put  up  the  estate  to  sale  by  auction. 
It  was  proved  that  a  bidder  was  employed  on  their  parts 
to  bid  up  to,  but  not  to  exceed  750/.,  the  sum  for  which 
the  estate  was  actually  sold.  The  Master  of  the  Rolls 
held,  that  the  assignees  had  not  committed  any  fraud, 
they  did  not  employ  the  bidder  for  the  purpose,  generally, 
of  enhancing  the  price,  but  merely  to  prevent  a  sale  at  an 
undervalue,  and  they  stated,  previously,  what  they  con- 
ceived to  be  the  true  value,  below  which  the  lot  ought  not 
to  be  sold.  His  Honor  treated  the  case  of  Howard  v. 
Castle  as  having  proceeded  on  the  ground  of  plain  and 
direct  fraud,  and  said,  that  in  a  similar  case  he  should 
come  to  a  similar  conclusion. 

By    these    decisions,    therefore,    it    was    settled,  that 

(o)   3  Yes.  jun.  620. 

ip)   Smith  V.  Clarke,  12  Yes?,  jun.  477. 


AND  PRIVATE  CONTRACT. 


27 


a  bidder  may  be  privately  appointed  by  the  owner  in 
order  to  prevent  the  estate  from  being  sold  at  an  under- 
value ;  and  that  if  there  were  real  bidders  at  a  sale, 
it  must  be  supported,  although  the  bidding  immediately 
preceding  that  of  the  purchaser  was  fictitious(9') ;  and  that 
where  public  notice  has  been  given,  the  contract  will  be 
binding  on  the  purchaser,  although  there  was  no  contest 
between  real  bidders  ;  but  only  the  purchaser  and  the 
person  employed  to  bid,  bid  against  each  other(r).  It 
should  ^eem  that  consistently,  with  the  above  authorities, 
the  rule  would  be  the  same,  even  where  public  notice 
had  not  been  given,  provided  the  bidder  w^as  appointed 
only  to  protect  the  vendor's  interest.(2) 

But  where  a  person  is  employed,  not  for  the  defensive 
precaution,  with  a  view^  to  prevent  a  sale  at  an  under- 
value, but  to  take  advantage  of  the  eagerness  of  bidders 
to  screw  up  the  price,  that  will  be  deemed  a  fraud(5). 

Neither  do  the  cases  authorize  the  vendor  to  appoint 
more  than  one  person  on  his  behalf.  It  seems  highly  pro- 
per that  a  vendor  should  be  permitted  to  appoint  a  person 
to  guard  his  interests  against  the  intrigues  of  bidders  ;  but 
it  does  not  follow  that  he  may  appoint  more  than  one. 
The  only  possible  object  of  such  a  proceeding  is  fraud.  It 
is  simply  a  mock   auction ;    and,   notwithstanding    Lord 

(,/)    Smitli  r.  Chuko,  12  Yes.  juii.  477. 

()•)    Oldficld  V.  Round,  5  Ves.  jnn.  608. 

(s)^See  12  Ves.  jiin.  483.  In  Fitzgerald  v.  Forster,  31st  July,  1813, 
the  Vice-Chancellor  seemed  rather  to  be  of  opinion  that  the  appoiiit- 
nieut  of  one  putier  wa?,  in  no  case,  bad. 

(2)  In  Soulh  Carolina,  it  has  been  decided  that  a  person  may  bo  em- 
ployed to  bid  on  the  part  of  the  vendor,  at  a  public  sale  of  lands ;  and 
the  purchaser  at  such  sale  will  be  compelled  to  complete  the  purchase, 
although  he  had  no  notice  that  such  person  was  so  employed,  and  the 
price  at  which  the  land  was  knocked  down,  was,  by  such  means,  en- 
hanced much  beyond  its  real  value.  Jenkins  v.  Hogg,  2  Const.  Rep. 
821. 


Og  OF  SALES  BY  AUCTION 

Rosslyn's  impression,  it  is  universallj  felt  and  acknow- 
ledged, that  the  judgments  of  most  men  are  deluded  and 
influenced  by  the  biddings  of  others.  As  far  as  any  aid  is 
sought  from  the  auction-duty  acts,  in  support  of  private 
biddings  on  behalf  of  the  owner,  it  is  clear  that  they  do 
not  authorize  or  sanction  the  appointment  of  more  than  one 
person.  In  the  report  of  Conolly  v.  Parsons  it  is  stated, 
that  persons  were  employed  to  bid,  and  did  bid  for  the 
vendors  ;  but  the  fact  is,  that  one  person  only  was  employ- 
ed by  them,  and  actually  bid  on  their  behalf.  The  Master 
of  the  Rolls  observed,  in  the  late  case  of  Smith  v.  Clarke, 
that  he  did  not  see,  that  if  several  bidders  were  employed 
by  the  vendor,  in  that  case,  a  court  of  equity  would  com- 
pel the  purchaser  to  carry  the  agreement  into  execution  ; 
for  that  must  be  done  merely  to  enhance  the  price.  It 
was  not  necessary  for  the  defensive  purpose  of  protection 
against  a  sale  at  an  undervalue(/). 

In  a  later  case  upon  this  subject,  Lord  Tenterden  held 
clearly  that  the  sale  was  void  in  point  of  law,  as  two  per- 
sons had  been  employed  to  bid,  although  they  were  both 
limited  not  to  go  beyond  the  same  fixed  sum.  The  cur- 
rent of  authority,  therefore,  is  clearly  against  the  validity 
of  such  a  sale(M). 

In  the  same  case,  the  learned  Judge  also  expressed  his 
opinion,  that  if  only  one  person  be  appointed  to  bid,  with 
a  view  to  save  the  auction  duty,  the  sale  is  void,  unless  it 
be  announced  that  there  is  a  person  bidding  for  the  owner. 
The  act  itself  is  fraudulent :  the  statute  was  made  for  a 
different  purpose,  with  a  view  to  the  duty  only,  and  can- 
not be  made  to  sanction  what  is  in  itself  fraudulent. 

And  this  opinion  has  since  been  followed  in  the  Exche- 
quer, where  upon  a  sale  by  the  Crown  of  an  estate  seized 
under  an  extent,  it  was  stipulated,  that  "  on  the  part  of 

{t)  See  12  Ves.  jun.  483  ;  and  see  8  Term  Rep.  93.  95. 
(m)   Wheeler  v.  Collier,  1  Mood.  &  Malk.  123. 


AND  PRIVATE  CONTRACT. 


29 


the  Crown,  Mr.  E.  Driver  should  be  at  liberty  to  make 
one  bidding,  but  no  more,  and  if  the  highest  bidder,  the 
sale  to  be  void  ;"  and  a  puffer  was  employed  at  the  auc- 
tion by  Mr.  Driver,  the  agent  for  the  Crown ;  the  court 
held  that  the  sale  was  not  binding  upon  the  purchaser. 
The  Court  considered  it  clear,  that  in  an  ordinary  case 
the  employment  of  a  puffer  vitiated  the  sale,  and  there 
was  no  reason  why  the  Crown  should  be  subject  to  a 
different  rule(?;).  But  we  cannot  fail  to  perceive  that  in 
this  last  case  the  condition  was  pregnant  with  a  negative, 
that  no  puffer  should  be  employed.  The  strong  leaning 
of  the  courts,  however,  is  at  present  against  the  validity 
of  a  sale  where  even  a  single  puffer  is  employed,  although 
after  the  decisions  to  the  contrary  upon  this  point,  which 
are  daily  acted  upon,  it  would  be  difficult  to  come  to  such 
a  conclusion,  except  in  the  House  of  Lords. 

Although  an  original  purchaser  will  not  be  bound 
where  a  fraud  has  been  practised  in  the  biddings,  yet  if  he 
transfer  his  contract,  a  strong  case  of  fraud  must  be  made 
out  against  the  original  purchaser,  to  enable  the  court  to 
give  the  benefit  of  it  to  his  assignee,  who  was  not  induced 
through  competition  to  give  the  price(i;). 

If  the  particulars  or  advertisements  state  (as  they  fre- 
quently do)  that  the  estate  is  to  be  sold  without  reserve, 
it  seems  clear  that  the  sale  would  be  void  against  a  pur- 
chaser, if  any  person  were  employed  as  a  puffer,  and  actu- 
ally bid  at  the  sale.  This  was  actually  decided  in  the  late 
case  of  Meadows  v.  Tanner(it;).  The  Vice-Chancellor 
said,  that  the  plain  meaning  of  the  words  without  reserve, 
in  a  particular  of  sale,  is,  that  no  person  will  be  employed 
to  bid  on  behalf  of  the  vendor  for  the  purpose  of  keeping 

(v)  3  You.  and  Jer.  331,  and  see  Crowdcr  v.  Austin,  3  Bing.  368, 
11  Moo.  283. 

(r)  See  12  Ves.  jun.  484. 
(tr)  5  Madd.  34. 


30  OF  SALES  BY  AUCTION 

up  the  price  ;  and  that  the  vendor  could  have  no  claim  to 
the  aid  of  a  court  of  equity  to  enforce  a  contract  against 
the  purchaser,  into  which  he  might  have  been  drawn  by 
the  vendor's  want  of  faith. 

It  is  generally  understood,  that  some  person  will  bid  on 
the  part  of  the  owner  ;  and  it  therefore  seems  to  deserve 
consideration,  whether  it  would  not,  in  most  cases,  be  ad- 
visable to  give  public  notice  of  the  owner's  intention  pre- 
viously to  the  sale.  Where  public  notice  is  given,  the 
mode  least  liable  to  objection  seems  to  be  that  of  i:eserving 
a  bidding,  or  stipulating  in  the  conditions  of  sale,  that  the 
owner  may  bid  once  in  the  course  of  the  sale(.T).  It  may 
here,  however,  be  proper  to  observe,  that  buying-in  an 
estate,  especially  where  it  is  done  without  public  notice, 
mostly  prejudices  a  future  sale.  This  was  exemplified  in 
the  sale  of  an  estate  before  one  of  the  Masters  in  Chancery, 
where  23,000/.  was  bona  fide  bid,  and  the  estate  was 
bought  in  by  the  agent  of  the  vendor ;  afterwards  there 
were  three  other  sales  in  the  Master's  office  ;  and  the  con- 
sequence of  the  estate  having  been  bought-in  deterring 
others  from  bidding,  was,  that  on  the  two  first  occasions 
no  more  was  offered  than  12,000/.  and  6,000/. ;  and  the 
estate  finally  sold  for  1 5,000/.  (?/) 

On  the  other  hand,  if  a  purchaser  by  his  conduct 
deter  other  persons  from  bidding,  the  sale  will  not  be 
binding.  Thus,  where  upon  a  sale  by  auction  of  a  barge, 
a  bidder  addressed  the  company  present,  saying  he  had 
a  claim  against  the  late  owner,  by  whom  he  said  he  had 
been  ill  used,  whereupon  no  one  offered  to  bid  against 
him  ;  but  the  auctioneer  refusing  to  knock  down  the 
property  to  a  single  bidding,  a  friend  of  the  bidder's 
bade  a  guinea  more,   and  the  first  bidder  then  made  a 

{x)  See  Cowp.  397. 

(y)  See  6  Ves.  jun.  629  ;  Wren  v.  Kirton,  8  Ves.  jun.  502  ;  and  see 
Twining  r.  Morris,  2  Bro.  C.  C.  326. 


AND  PRIVATE  CONTRACT. 


31 


second  and  higher  bidding,  amounting,  however,  to  only 
one  fourth  of  the  prime  cost  of  the  barge ;  it  was  held 
that  there  was  no  legal  sale(2:).  (3). 


III.  The  particulars  and  conditions  of  sale(rt)  next 
claim  our  attention. 

It  seems  that  the  Judges  will  so  construe  them  as  to 
endeavor  to  collect  the  meaning  of  the  parties,  without 

{z)  Fuller  I'.  Abrahams,  3  Brod.  &  Bing.  116  ;  S.  C.  6  Moo.  316. 
(o)  See  a  form  of  them,  App.  No.  4. 

(3)  Where  there  was  an  agreement  by  the  owner  of  an  execution, 
with  certain  other  person?,  to  prevent  the  usual  competition  at  a  sheriff's 
sale,  in  order  to  leave  a  balance  on  the  execution,  for  the  -purpose  of 
seizing  other  lands  of  the  debtor,  whereby  the  property  was  sold  for  a 
mere  nominal  price,  it  was  held,  that  the  sale  was  void.  Troup  v. 
^Vood,  4  Johns.  Ch.  Rep.  228,  254.  See  Brodie  v.  Seagroves,  2 
riayw.  70. 

So,  where  two  persons,  being  desirous  of  purchasing  certain  articles 
advertised  for  sale  at  auction,  agreed  not  to  bid  against  each  other,  but 
that  one  of  them  should  bid  in  the  property,  which  should  be  divided 
between  them,  it  was  decided,  that  such  agreement  was  without  con- 
sideration and  void,  and  against  public  policy.  Doolin  v.  Ward,  6 
Johns.  Rep.  194.  See  Wilbur  v.  Hou-,  8  Johns.  Rep.  346.  2d  edit. 
Thompson  v.  Davits,  13  Johns.  Rep.  112.  Jones  v.  Casivell,  3  Johns. 
Cas.  29. 

So,  a  purchase,  by  an  executor  or  administrator,  of  the  estate  of  the 
testator  or  intestate,  where  others  were  deterred  from  bidding  in  con- 
sequence of  doubts  as  to  the  title,  suggested  by  the  purchaser,  whereby 
he  obtained  the  property  at  an  undervalue,  will  be  annulled  in  equity. 
Hudson  V.  Hudson,  5  Munf  180.  See  Wood's  Exr.  &c.  v.  Hudson,  5 
Munf.  423. 

And  where  the  advertisement  of  a  sale,  contains  an  assertion  which 
is  false,  as,  that  the  land  is  to  be  sold  for  the  satisfaction  of  three  mort- 
gages, when  there  are  hoo  only,  by  which  purchasers  may  be  deterred 
from  bidding,  the  sale  will  be  deemed  irregular  and  void.  Burnet  v. 
Denniston,  5  Johns.  Ch.  Rep.  35. 


32 


OF  SALES  BY  AUCTION 


encumbering  themselves  with  the  technical  meaning  of  the 
words. 

Thus  where(6)  the  city  of  London  let  an  estate  by  auc- 
tion for  a  term  of  years,  according  to  certain  conditions  of 
sale,  by  which  it  was  stipulated  that  the  purchaser  should 
pay  a  certain  reiit  before  the  lease  was  granted,  which  he 
accordingly  agreed  to  do,  the  Court  of  King's  Bench  held 
that  although  the  money  to  be  paid  could  not  be  strictly 
called  a  rent,  the  relation  of  landlord  and  tenant  not  hav- 
ing then  commenced,  yet  the  parties  intended  the  money 
should  be  paid,  and  it  must  be  paid  accordingly.  Lord 
Kenyon  said,  he  had  always  admired  an  expression  of 
Lord  Hardwicke's,  "  that  there  is  no  magic  in  words." 
But  an  agreement  for  purchase,  with  a  stipulation,  that 
until  the  conveyance  is  made  the  purchaser  shall  pay  and 
allow  to  the  seller  at  the  rate  of  a  fixed  sum  per  annum, 
three  half-yearly  payments  will  create  the  relation  of 
landlord  and  tenant,  and  the  sum  payable  will  be  re- 
coverable as  rent(c). 

Great  care,  however,  should  be  taken  to  make  the  par- 
ticulars and  conditions  accurate  ;  for  the  auctioneer  cannot 
contradict  them  at  the  time  of  sale,  such  verbal  declara- 
tions being  inadmissible  as  evidence(4). 

Thus,  where  estates  were  put  up  to  sale  by  auction(flf), 
and  in  the  printed  particulars  of  sale  were  stated  to  he  free 
from  all  ijiciimbrances,  they  were  bought  by  a  person 
who,  discovering  that  there  was  a  charge  on  the  estate  of 
17/.  per  annum,  refused  to  complete  the  purchase,  in  con- 

(h)  City  of  London  v.  Dias,  Woodfall's  L.  &  T.  301. 

(c)  Saunders  v.  Musgrave,  6  Barn.  &  Cres.  524  ;  S.  C.  9  Dowl. 
&  R.  629. 

(d)  Gunnis  v.  Erharl,  1  H.  Black.  289;  see  Jones  v.  Edney,  3 
Camp.  Ca.  285,  6  ;   Bradshavv  i'.  Bennett,  5  Carr.  &  Pay.  48. 

(4)  See  Grantland  v.  Wight,  2  Munf.  179,  contra,  ut  semb.  Wright's 
Les.  V.  Dickline,  1  Peter's  Rep.  199. 


AND  PRIVATE  CONTRACT.  oo 

sequence  of  which,  an  action  was  brought  by  the  vendor  ; 
and  although  he  offered  to  give  in  evidence,  that  the  auc- 
tioneer had  publicly  declared  from  his  pulpit  in  the  auc- 
tion-room, where  the  estate  was  put  up,  that  it  was  charged 
in  the  manner  above  specified,  yet  the  court  of  C.  B.  re- 
fused to  admit  the  evidence,  as  it  would  open  a  door  to 
fraud  and  inconvenience,  if  an  auctioneer  were  permitted 
to  make  verbal  declarations  in  the  auction-room,  contrary 
to  the  printed  conditions  of  sale  ;  and  the  plaintiff  was 
nonsuited.  And  this  rule  prevails  in  favor  as  well  of  the 
(*)seller  as  of  the  purchaser(e),  and  it  equally  applies  to 
a  sub-sale  ;  therefore,  if  A.  buy  at  a  sale  after  a  formal 
explanation  at  the  sale,  w  hich  was  heard  by  B.,  and  then 
re-sell  to  B.,  the  first  declaration  is  no  more  binding  upon 
B.  than  A.,  and  therefore  A.  cannot  enforce  the  contract, 
as  explained  by  the  auctioneer,  against  B.(/^). 

The  same  rule  of  course  prevails  in  equity,  where  the 
person  setting  up  the  parol  evidence  is  plaintiff.  Upon  the 
sale  of  an  estate  by  auction  the  particular  was  equivocal 
as  to  the  words  :  but  it  was  clear  the  purchaser  w  as  to 
pay  for  timber  and  timber-like  trees.  There  was  a  large 
underwood  upon  the  estate.  At  the  sale,  the  article  being 
ambiguous,  the  auctioneer  declared  he  was  only  to  sell 
the  land  ;  and  every  thing  growing  upon  the  land  must  be 
paid  for.  The  defendant,  the  purchaser,  insisted  he  was 
only  to  pay  for  timber  and  timber-like  trees,  not  for  plan- 
tation and  underwood.  The  declaration  at  the  sale  was 
distinctly  proved  ;  but  it  was  determined  by  the  Court  of 
Exchequer  that  the  parol  evidence  was  not  admissi- 
ble(?)(5). 

(c)   Powell  V.  Edmunds,  12  East,  6, 
(/)   Shelton  v.  Livins,  2  Crompt.  &  Jer.  411. 

(g-)  Jenkinson  r.  Pepys,  6  Yes.  jiin.  330,  cited  ;  16  Vos.  jtin.  521, 
stated. 

(6)   But,  t7  5ec»i5,  that   a  purchaser  of  an  estate  at  auction,  is   bound 

VOL.  I.  5  (*32) 


QA  OF  SALES  BY  AUCTION 

Nor  when  the  seller  is  plaintiff  can  parol  evidence  be 
admitted  on  his  behalf,  of  the  declarations  at  the  sale, 
although  the  purchaser  by  the  written  agreement  bind 
himself  to  abide  by  the  conditions  and  declarations  made 
at  the  sale(h)(6). 

But  a  question  has  been  raised,  whether,  if  by  a  colla- 
teral representation  a  party  be  induced  to  enter  into  a  writ- 
ten agreement,  different  from  such  representation,  he  may 
not  have  an  action  on  the  case  for  the  fraud  practised  to 
lay  asleep  his  prudence(i)(7). 

(*)And  if  the  purchaser  have  particular  personal  infor- 
mation given  him  of  an  incumbrance,  or  of  the  nature  of 
the  title,  it  seems  that  the  parol  evidence  may  be  admit- 
ted(j).  It  may  therefore  be  proved  that  the  purchaser 
perused  the  original  lease  before  the  sale(A;).  Such  evi- 
dence may  be  used  in  equity  as  a  defence  against  the  spe- 
cific performance,  if  the  parol  variation  was  in  favor  of 
the  defendant,  and  the  plaintiff  seek  a  performance  in 
specie  according  to  the  written  agreement(/)(8). 

(h)   HigginsoniJ.  Clowes,  15  Ves.  jun.  615, 

(t)  See  Powell  v.  Edmunds,  12  East,  6. 

(j)  Gunnis  v.  Erhart,  1  H.  Black.  289  ;  and  see  Pember  v.  Mathers, 
1  Bro.  C.  C.  52  ;  Fife  v.  Clayton,  13  Ves.  jun.  546,  where  the  particu- 
lar was  altered  before  the  sale.     Ogilvie  v.  Foljambe,  3  Mer.  53. 

(i-)  Bradshaw  v.  Bennett,  5  Carr.  &  Pay.  48. 

{I)   Higginson  v.  Clowes,  ubi  sup. 

by  the  verbal  declarations  of  the  auctioneer,  publicly  made  at  the  sale, 
and  before  the  biddings  commenced,  not  variant  from  the  terms  adver- 
tised, but  merely  additional  and  explanatory ;  and  that  the  purchaser 
may  be  compelled  to  complete  his  purchase  according  to  the  terms  so 
explained.  Cannon  v.  Mitchell,  2  Des.  320.  See  Wainwright  v.  Read 
et  al  1  Des.  673. 

(6)  See  Contra.     Giantland  v.  Wight,  2  Munf.  179. 

(7)  See  Bulklerj  v.  Stover,  2  Day,  631.  JMonell  v.  Colden,  13  Johns. 
Rep.  395. 

(8)  See  Ten  Broeclc  v.  Livingston,  1  Johns.  Ch.  Rep.  367.  Waiii' 
ivright  V.  Read  et  al.  1  Des.  673. 

(*33) 


.WiD  PRIVATE  CONTRACT.  35 

U  it  be  the  custom  in  a  public  auction-room  to  paste 
up  the  conditions  of  sale  in  the  room,  and  the  auctioneer 
announces  that  the  conditions  are  as  usual,  they  will,  if 
pasted  up  according  to  the  usual  custom,  be  binding  on 
the  purchaser,  although  he  did  not  see  them(m).  This 
can  seldom,  however,  happen  upon  a  sale  of  estates. 

The  late  Mr.  Bradley  recommended,  that  where  it  is 
understood,  at  the  time  of  sale,  that  the  vendor  has  only 
a  doubtful  title,  a  provisional  clause,  to  the  following 
effect,  should  be  inserted  in  the  conditons  of  sale  and 
articles  of  purchase;  which  would  be  sufficient,  he  thought, 
to  obviate  any  doubt  that  might  otherwise  arise  at  the 
sale  : 

"  That  if  the  counsel  of  the  purchaser  shall,  on  the  ex- 
amination of  the  title,  be  of  opinion  that  a  good  title  and 
conveyance  cannot  be  made  of  the  purchased  premises, 
within  the  time  limited  by  the  articles  for  carrying  the 
same  into  execution ;  in  that  case,  the  same  articles  shall 
be  discharged,  and  not  further  proceeded  in  on  either 
side." 

{*)The  estate  cannot  be  too  minutely  described  in  the 
particulars  ;  for  although,  as  Lord  Thurlow  observed,  it  is 
impossible  that  all  the  little  particulars  relative  to  the 
quantity,  the  situation,  &c.  should  be  so  specifically  laid 
down,  as  not  to  call  for  some  allowance  and  consideration, 
when  the  bargain  comes  to  be  executed (/i)  ;  yet,  if  a  per- 
son, however  unconversant  in  the  actual  situation  of  his 
estate,  will  give  a  description,  he  must  be  bound  by  that, 
whether  conusant  of  it  or  not(o)(9). 

(»i)   Mesnard  v.  Aldridge,  3  Esp.  Ca.  271. 
(n)   See  1  Ves.  jun.  224,  per  Lord  Thurlow. 

(0)  See  1  Ves.  jun.  213,  per  Lord  Thurlow;  Schneider  r.  Heath,  3 
Camp.  Ca.  506. 

(9)  See  Judson  v.  Wass,  11  Johns.  Rep.  525.  .WFerran  v.  Taylor, 
it,  alt,  3  Cranch,  270.     Stale  v.  Caillard  et.  al.  2  Ba>,  11. 

(*34j 


3g  OF  SALES  BY  AUCTION 

Lord  Ellenborougli  has  observed,  that  a  little  more  fair- 
ness on  the  part  oi"  auctioneers,  in  the  forming  of  their 
particuhir.s,  would  avoid  many  inconveniences.  There  is 
always  either  a  suppression  of  the  fair  description  of  the 
premises,  or  there  is  something  stated  vsdiich  does  not 
belong  to  them  ;  and  in  favor  of  justice,  considering 
how  little  knowledge  the  parties  have  of  the  thing  sold, 
much  more  particularity  and  fairness  might  be  expected. 
The  particulars,  his  Lordship  added,  are  in  truth  like  the 
description  in  a  policy  of  insurance,  and  the  buyer  knows 
nothing  but  what  the  party  communicat.es(p). 

In  one  case(9)  the  conditions  of  sale  stated  a  house  to 
be  "  a  free  public-house."  The  lease  contained  a  cove- 
nant to  take  beer  from  the  lessors  ;  the  auctioneer  read 
over  the  w^holc  lease  in  the  hearing  of  the  bidders,  but 
he  stated  erroneously  that  the  covenant  had  been  decided 
to  be  bad.  The  purchaser  brought  an  action  to  recover 
his  deposit.  Lord  Ellenborough  said,  that  in  the  con- 
ditions of  sale  this  is  stated  to  be  "  a  free  public-house." 
Had  the  auctioneer  afterwards  verbally  contradicted  this, 
(*)he  should  have  paid  very  little  attention  to  what  he  said 
from  his  pulpit.  Men  cannot  tell  what  contracts  they 
enter  into  if  the  written  conditions  of  sale  are  to  be  con- 
trolled by  the  babble  of  the  auction-room.  But  here  the 
auctioneer,  at  the  time  of  the  sale,  declared,  that  he 
warranted  and  sold  this  a  free  public-house.  Under 
these  circumstances,  a  bidder  was  not  bound  to  attend 
to  the  clauses  of  the  lease,  or  to  consider  their  legal 
operation. 

Where  a  lease  is  sold,  the  purchaser  is  not  bound  to 
complete  his  purchase  if  any  part  of  the  buildings  de- 
mised  have   been  removed,  although  he  heard  the  lease 

(/))    See  3  Smith,  439  ;   and  see  Duke  of  Xoitblk  v.  Worthy,  1  Camp. 
Ca.  337,  and  post.    Waring  v.  Hoggart,  1  Ry.  Ik,  Mood.  39. 
(q)  Jones  i'.  Edney,  3  Camp.  Ca.  284. 

(*35) 


AND  PRIVATE  CONTRACT. 


37 


read,  and  the  particulars  did  not  comprise  the  building 
in  question(r). 

But  where  the  agreement  was  to  sell  the  lease  of  a 
public-house,  described  as  held  at  a  certain  net  annual 
rent,  under  common  and  usual  covenants,  it  was  held  that 
the  contract  was  binding  upon  the  purchaser,  although 
the  lease  contained  a  covenant  by  the  tenant  to  pay  the 
land-tax,  sewers  rate  and  all  other  taxes,  and  a  proviso 
for  re-entry  if  any  business  but  that  of  a  victualler  should 
be  carried  on  in  the  house(5). 

In  a  case  where  the  original  lease  contained  a  power 
of  re-entry  if  certain  trades  were  carried  on  upon  the 
])roperty,  and  the  lessee  granted  under-leases  containing 
no  such  stipulation,  and  upon  a  sale  by  the  assignee  of 
the  original  lessee,  the  conditions  of  sale  stated  the 
covenant  in  the  original  lease,  and  that  such  covenant 
would  be  inserted  in  the  under-leases  to  be  granted  to 
the  purchasers,  but  no  mention  was  made  whether  the 
covenant  was  inserted  in  the  under-leases  already  granted, 
the  purchaser  was  allowed  to  recover  his  deposit  from  the 
(*)auctioneer(/).  Lord  Tenterden  observed,  that  he  was 
of  opinion  that  it  is  the  duty  of  every  person  truly  and 
honestly  to  represent  that  which  he  is  to  sell.  A  careful 
man  and  a  lawyer  looking  at  these  conditions  of  sale 
mijiht  ask.  what  were  the  terms  of  the  leases  which  had 
been  granted  :  The  purchaser  is  informed  by  the  state- 
ment in  the  conditions,  that  the  original  lessee  is  re- 
strained from  carrying  on  these  obnoxious  trades,  and 
that  in  the  leases  to  be  granted  to  him  a  similar  covenant 
is  to  be  entered  into.  None  but  a  very  careful  person 
would  suppose   that   it  could   be  doubtful  whether  the 

()•)   Granger  v.  "Worms,  4  Camp.  Ca.  83. 

(s)  Bennett  v.  Womack,  7  Barn.  &  Cress.  627 ;  8.  C.  1  Man.  &. 
R.  644. 

(0  Waring  v.  Hoggart,  1  Ry.  &  Mood.  39. 

(*36) 


38  OF  SALES  BY  AUCTION 

persons  to  whom  under-leases  had  already  been  granted 
were  bound  in  the  same  manner.  He  was,  therefore, 
clearly  of  opinion  that  the  plaintiff  could  not  be  bound 
to  take  the  title. 

In  stating  an  estate  to  be  of  any  given  "  clear"  yearly- 
rent,  the  parties  should  attend  to  the  meaning  of  the  word 
"clear,"  in  an  agreement  between  buyer  and  seller;  which 
is  clear  of  all  outgoings,  incumbrances,  and  extraordinary 
charges,  not  according  to  the  custom  of  the  country,  as 
tythes,  poor-rates,  church-rates,  &c.  which  are  natural 
charges  on  the  tenant(w). 

As  we  have  already  seen,  the  statement  that  the  pro- 
perty is  in  lease  binds  the  purchaser  to  the  covenants  in 
the  lease(t?).  In  Barraud  v,  KxQhe\{iv)  the  particulars 
of  sale  described  the  estate,  which  was  in  the  Isle  of 
Ely,  as  consisting  of  fen  land,  and  as  being  let  to  a 
tenant  at  the  yearly  rent  of  165/.,  and  stated  that  the 
lessor  allowed  the  eau-brink-tax  and  land-tax.  It  ap- 
peared that  the  estate  was  also  subject  to  other  taxes  for 
embanking  and  draining,  under  a  local  public  act  of 
(*)Parliament,  and  as  they  were  not  mentioned  in  the  par- 
ticulars, the  purchaser  claimed  a  compensation  for  them. 
On  the  part  of  the  seller,  it  was  insisted  that"  there  was 
no  misrepresentation,  and  that  the  particular  expressly 
mentioned  that  the  estate  was  fen  land,  and  enumerated 
all  the  taxes  which  the  landlord  allowed  to  the  tenant, 
and  that  it  was  not  usual  to  state  the  taxes  which  the 
tenant  paid.  The  Vice-Chancellor  held  that  the  pur- 
chaser was  not  entitled  to  a  compensation (.r). 

But  if  there  was  a  misrepresentation,  of  course  the  pur- 
chaser would  be  entitled  to  a  compensation. 

(n)  Earl  of  Tyrconnel  v.  Duke  of  Ancaster,  Ambl.  237  ;  2  Ves. 
500. 

{v)    Supra,  p.  9. 

(t«)   2  Sim.  433. 

(,r)  Lord  Townsend  r.  Granger,  2  Sim.  433. 

t*37) 


Jl 


AND  PRIVATE  CONTRACT.  39 

The  mere  exhibition  of  a  plan  of  a  new  street,  at  the 
time  of  the  sale  of  a  piece  of  ground  to  build  a  house  in 
the  line  of  the  intended  street,  does  not  amount  to  an 
implied  contract  to  execute  the  improvements  exhibited 
on  the  plan,  where  the  written  contract  is  silent  on  that 
head(y). 

Where  the  timber  and  other  trees  are  to  be  taken  by 
the  purchaser  at  a  valuation,  it  should  be  stated  accu- 
rately for  what  trees  he  is  to  pay. 

In  a  case  where  there  were  several  lots,  it  was  stated 
after  two  of  them,  that  the  timber  on  them  was  to  be  paid 
for.  The  particulars  were  silent  as  to  the  timber  on  the 
other  lots,  which  was  of  considerably  greater  value  ;  but 
there  was  a  general  condition  that  all  the  timber  and 
timber-like  trees,  down  to  Is.  per  stick  inclusive,  should 
be  taken  at  a  fair  valuation.  The  purchaser  of  the  lots, 
to  which  no  statement  was  annexed,  claimed  the  timber 
without  paying  for  it;  and  the  Master  of  the  Rolls 
thought  that  a  purchaser  might  be  so  fairly  impressed 
with  that  idea,  notwithstanding  the  general  condition, 
(*)that  he  refused  to  compel  him  to  perform  the  contract 
according  to  the  seller's  construction (z). 

But  although  it  should  be  merely  stipulated  that  the 
j)urchaser  shall  pay  for  timber  yet  he  must  pay  for  trees 
not  strictly  timber,  if  considered  so,  according  to  the 
custom  of  the  country  (a). 

It  is  proper,  also,  to  make  some  provision  as  to  articles 
not  properly  fixtures.  Lord  Hardvvicke  said,  that  if 
a  man  sells  a  house  where  there  is  a  copper,  or  a  brew- 
house  where  there  are  utensils,  unless  there  was  some 

(y)  Feoffees  of  Henott*s  Hospital  v.  Gibson,  2  Dow,  301  ;  see 
Compton  V.  Richards,  1  Price,  27;  Beaumont  r.  Dukes,  iJac.  422. 

(z)  Higginsoii  r.  Clowes,  15  Ves.  jun.  616. 

(a)  Duke  of  Chandosr.  Talbot,  2  P.  Wras.  601  ;  Anon.  Ch.  25  Ju- 
ly, 1808;  Rabbett  v.  Raikes,  Woodfall  L.  &  T.  224,  6th  ed  ;  and  see 
Aubrey  v.  Fisher,  10  East,  446. 

(*38) 


^Q  OF  SALES  BY  AUCTION 

consideration  given  for  them,  and  a  valuation  set  upon 
them,  thej  would  not  pass(6).  But  in  the  absence  of  any 
stipulation,  common  fixtures  would  pass  to  the  purchaser 
under  the  common  convejance(c)(10). 

(6)   Ex  parte  Quincey,  1  Atk.  478. 

(c)  Colegrave  v.  Dias  Santos,  2  Bam.  &  Cress.  76  ;  3  Dowl.  &  R. 
265. 

(10)  A  kettle  in  a  fulling  mill,  set  in  brick  work,  and  used  for  dying 
cloth,  will  pass  to  the  mortgagee  in  fee  of  the  mill  ;  though  no  mention 
of  the  appurtenances  be  made  in  the  deed.  Union  Bank  v.  Emerson, 
15  Mass.  Rep.  169. 

What  ought  to  be  considered  a  fixture  depends,  materially,  upon  the 
nature  of  the  freehold  sold.  If  a  plantation,  then  all  such  things  attach- 
ed to  the  land,  which  are  usually  necessary,  or  used  in  the  management 
of  a  farm  would  pass.  If  a  freehold  fitted  up  for  a  trade  of  any  kind,  or 
for  manufactures,  is  sold  to  a  person  intending  to  follow  the  same  busi- 
ness, then  all  the  machinery  necessary  to  the  trade,  or  manufacture,  so 
intended  to  be  carried  on,  would  pass.  (By  the  Court  in  1  Bailey's  S. 
C.  R.  641.)  The  action  was  trover  for  a  cotton  gin,  which  was  attach- 
ed to  the  gears  in  the  gin-house  ;  and  it  was  held  to  be  a  fixture,  which 
passed  by  the  contract  of  sale.  But  in  the  earlier  case  of  M'Clinlock 
V.  Graham,  3  M'Cord,  553,  where  the  question  was  in  respect  to  a  still 
and  vessels  set  up  in  a  rock  furnace,  which  was  built  against  the  wall. 
THc  claim  of  the  purchaser  was  under  a  sheriff's  sale  ;  and  the  court 
were  very  clear,  that  it  did  not  pass  by  the  contract  of  sale.  The  Court, 
Colcock,  J.  observed — If  it  was  a  mere  temporary  thing  not  necessary  to 
the  enjoyment  of  the  freehold  ;  as  between  executor  and  heir,  I  should 
hold  there  was  no  doubt  but  that  it  must  pass.  But  all  difficulty  in  this 
case  must  vanish  when  we  consider  the  question  in  relation  to  the  par- 
ties claiming ;  as  to  them  it  becomes  a  mere  question  of  contract.  C. 
the  first  purchaser  from  T.  says,  when  he  bought  the  land,  the  still  was 
excepted  ;  and  C,  who  sold  to  the  defendant,  says,  he  never  heard  a 
word  about  the  still  when  he  was  buying,  and  did  not  consider  himself 
as  buying  the  still.  Now,  whatever  rights  may  be  acquired  by  those 
who  succeed  ;  if  before  they  enter,  the  owner  of  the  freehold  himself 
makes  a  severance,  there  can  be  no  room  for  doubt. 

The  case  of  vendor  and  vendee  is  different  from  that  of  landlord  and 
tenant.  Spencer,  C.  J.  says  in  Holmes  v.  Tremper,  20  Johns.  R.  29, 
"  when  a  farm  is  sold  without  any  reservation,  the  same  rule  would 
apply,  as  to  the  right  of  the  vendor  to  remove  fixtures,  as  exists  between 


AND  PRIVATE  CONTRACT. 


41 


When  the    title-deeds  cannot    be  delivered  up,  some 
provision  should  be  made  as  to  the  expense  of  the  attested 


the  heir  and  executor."  That  rule  is  ;  whatever  is  affixed  to  the  free- 
hold becomes  part  of  if,  and  cannot  be  removed.  The  vendor  has  the 
absolute  control,  not  only  of  the  land,  but  of  the  improvements  ;  and  he 
has  an  election  to  sell  or  not  to  sell.  If  he  does  sell,  he  knows  the 
fixtures  pass  ;  not  being  in  such  cases  personal  property.  These  prin- 
ciples were  recognised  in  Miller  v.  Plumb,  6  Cowen,  665,  where  Plumb 
conveyed  by  deed  without  reservation,  an  ashery,  in  which  the  kettles 
were  set  in  mason  work,  but  the  arches  were  upon  a  platform  ;  and 
not  fastened  to  the  building.  The  troughs  were  sunk  in  the  ground. 
Miller,  who  purchased  the  premises  demised  the  ashery  ;  and  the 
lessee  entered  into  possession  and  used  the  kettles  until  a  fire  con- 
sumed the  building.  The  question  being  as  to  the  fixtures,  held,  that 
the  fixtures  passed  by  the  conveyance  ;  but  the  plaintiff  recovered  in 
trover  for  some  small  articles  not  annexed  to  the  freehold. 

A  tenant  for  life,  years,  or  at  will,  may  at  the  expiration  of  his  estate 
remove  from  the  freehold  all  such  improvements  as  were  erected  or 
placed  there  by  him,  the  removal  of  which  will  not  injure  the  premi- 
ses or  put  them  in  a  worse  plight  than  they  were  in  when  he  took  pos- 
session. Therefore,  in  \Yhiting  v.  Brastow,  4  Pick.  310,  where  the 
plaintiff  sued  the  defendant  in  trespass  for  entering  his  close  and  carrying 
away  a  padlock  and  some  boards  put  up  in  the  corn  house  for  binns  ; 
but  neither  were  in  any  way  fastened  to  the  building.  The  defendant 
was  but  a  tenant  at  will  when  the  plaintiff  purchased  the  estate.  The 
Court  held,  that  neither  the  padlock  nor  boards  could  be  called  a  fixture. 
If  put  there  by  the  landlord,  they  would  not  be  fixtures;  for  they  were 
loose  and  moveable  without  injury  to  the  freehold.  So,  in  Taylor  v. 
Townsend,  8  Mass.  411,  it  was  decided  that  a  mortgagee,  after  a  recov- 
ery by  the  mortgagor  on  a  bill  in  equity  to  redeem  ;  and  until  an  execu- 
tion of  the  decree  of  the  court,  may  take  down  any  buildings  erected  by 
him,  the  materials  of  which  were  his  own ;  and  which  were  not  so  con- 
nected with  the  soil  as  that  they  could  not  be  removed  without  prejudice 
to  it.  It  is  enough  for  the  tenant  to  say,  "  I  leave  you  the  land  as  I 
found  it."  A  fortiori  it  ought  to  apply  to  a  mortgagee  who  has  held  the 
estate  for  years  under  a  conveyance  from  the  owner. 

In  Gray  v.  Holdship,  17  S.  &  R.  413.  it  w^as  held,  that  a  copper 
kettle  or  boiler,  which  was  fastened  and  fixed  in  the  building,  which 
was  used  as  a  brewery,  and  an  essential  part  of  it,  was  subject  to  the 
mechanic's  lien  law.  Smith,  J.  distinguished  this  case  from  that  in 
14  Mass.  R.  352,  in  which  three  carding  machines  in  a  wool  carding 
VOL.    I.  6 


^2  OF  SALES  BY  AUCTION 

copies,  and  the  covenants  to  produce  them,  which  will 
otherwise  fall  upon  the  vendor(^/)  ;  and  where  the  estate 
is  sold  in  many  lots,  and  the  title-deeds  are  numerous, 
nearly  the  whole  purchase-money  may,  perhaps,  be  ex- 
hausted. In  one  case,  the  lots  were  more  than  200,  and 
the  copies  came  to  2,000/. 

If  the  estate  is  leasehold,  and  the  vendor  cannot  pro- 
cure an  abstract  of  the  lessor's  title,  this  fact  should  be 
stated  in  the  conditions(e). 

(d)  Dare  v.  Tucker,  6  Ves.  jun.  460  ;  and  Berry  v.  Youngs  2  Esp. 
Ca.  640,  n.     See  post.  c.  9. 

(e)  See  post.  ch.  7  ;  and  see  Denew  v.  Deverell,  3  Camp.  451. 

factory,  were  considered  as  personal  property.  There  the  carding  ma- 
chines were  not  a  necessary  part  of  the  factory,  and  essential  to  its 
operations.  They  stood  on  the  floor^  and  were  not  annexed  to  the 
building,  except  by  a  leather  band,  which  passed  over  the  wheel  or  pul- 
ley, to  give  motion  to  the  machines.  Here,  the  boiler  was  fastened  and 
fixed  in  the  building.  He  cited  the  case  of  the  Union  Bank  v.  Emerson, 
supra,  and  that  from  Mason's  R.  469,  in  which  Justice  Story,  decided, 
that  the  main  mill-wheel  and  gearing  of  a  factory  attached  to  the  same 
and  necessary  for  its  operations,  are  fixtures  and  real  estate. 

If  one  erect  buildings  upon  the  land  of  another  voluntarily  and  with- 
out any  contract,  he  may  not  remove  them.  Thus,  in  Washburn  et  al, 
V.  Sproat,  16  Mass.  449,  where  the  husband  erected  buildings  on  land, 
the  fee  of  which  was  in  the  wife,  held,  that  the  buildings  were  not  lia- 
ble for  his  debts  ;  his  estate  being  insolvent  after  his  decease.  So,  in 
Goddard  v.  Bolster  et  al.  6  Greenl.  427,  where  an  agent  of  the  owner 
of  a  mill  put  his  own  mill-stones  and  mill-irons  into  the  mill,  so  as  to 
become  a  part  of  the  freehold,  held,  that  neither  the  agent,  nor  his  cre- 
ditors could  seize  them,  though  the  mill  had  been  destroyed  by  a  flood, 
and  they  alone  remained. 

It  seems,  however,  that  where  the  owner  of  land  consents  to  the 
erection  of  a  dwelling  for  the  accommodation  of  a  son,  under  an  ex- 
pectation, that  the  former  would  devise  the  land  to  the  latter  at  some 
future  time,  the  property  of  the  building  is  personal  property :  and  "  per- 
haps the  son,  or  persons  claiming  under  him  by  purchase  or  execution? 
may  enter  and  remove  the  buildings,  without  being  subject  to  any  othe'^ 
than  nominal  damages  in  an  action  of  trespass."  W^ells  et  al.  v.  Banis- 
ter &  Trustee,  4  Mass.  614. 


AND  PRIVATE  CONTRACT. 


43 


A  purchaser  of  a  leasehold  estate  must  covenant  with 
the  vendor  to  indemnify  him  against  the  rent  and  (*)cove- 
nants  in  the  lease,  although  he  is  not  expressly  required 
to  do  so  by  the  conditions  of  sdi\e(f)  ;  and  it  will  not 
vary  the  case  that  he  is  not  entitled  to  any  covenants  for 
title  ;  for  example,  where  the  sale  is  by  an  executor  of  an 
assignee(^)  ;  but  assignees  of  a  bankrupt  selling  a  lease 
which  was  vested  in  him,  cannot  require  the  purchaser 
to  enter  into  such  a  covenant  for  their  indemnity  or  the 
indemnity  of  the  bankrupt(/i). 

And  although  a  purchaser  is  not  required  by  the  con- 
ditions of  sale  to  give  an  indemnity  against  the  rent  and 
covenants,  and  an  assignment  is  actually  executed  with- 
out any  indemnity  being  given  ;  yet,  even  a  verbal  agree- 
ment by  the  purchaser,  before  the  sale,  to  secure  such 
indemnity,  will  be  carried  into  a  specific  execution,  if  it 
be  distinctly  proved(i). 

Where  a  vendor  is  only  an  assignee  of  a  leasehold 
estate,  and  is  not  bound  by  covenant  to  pay  the  rent,  and 
perform  the  covenants  in  the  lease,  his  liability  to  do  so 
ceases  upon  his  assigning  the  estate  over(}"),  and  conse- 
quently, in  such  case,  there  is  not  any  thing  for  a  pur- 
chaser to  indemnify  against.  It  has  lately  been  decided 
that  the  assignee  is  liable  to  indemnify  the  lessee  who 
assigned  to  him  against  breaches  during  the  time  he  (the 
assignee)  is  in  possession,  although  he  has  not  covenanted 
to  indemnify  the  lessee(A:). 

(f)  See  Pember  i'.  Mathers,  1  Bro.  C.  C.  52  ;  and  see  post.  ch.  4, 
as  to  the  obUgation  of  a  purchaser  of  an  equity  of  redemption  to  in- 
demnify the  vendor  against  the  mortgage-money. 

{g)  Staines  v.  Morris,  1  Ves.  &  Beam.  8. 

{h)  Wilkins  V.  Fry,  1  Mer.  244. 

(t)  Pember  v.  Mathers,  1  Bro.  C.  C.  52  ;  and  see  posl.  ch.  3. 

(j)  See  1  Treat.  Eq.  2d  ed.  p.  350,  and  Fonbl.  n.  (y)  ibid.  ;  and 
see  Taylor  v.  Shum,  1  Bos.  &  Pull.  21. 

(/.)  Burnett  v.  Lynch,  5  Barn.   &  Cress.  689  ;    8  Dowl.  &  R.  368. 

(*39) 


44  OF  SALES  BY  AUCTION 

It  should  always  be  stated  in  the  conditions,  that  the 
(*)conveyance  shall  be  prepared  by  and  at  the  expense  of 
the  purchaser(/). 

The  usual  conditionj  "that  if  the  purchaser  shall  fail 
to  comply  with  the  conditions,  the  deposit  shall  be  for- 
feited, and  the  proprietors  be  at  liberty  to  re-sell  the 
estate  ;  and  the  deficiency,  if  any,  by  such  sale,  together 
with  all  charges  attending  the  same,  shall  be  made  good 
by  the  defaulter,"  should  never  be  ommitted.  It  forms 
a  lien  on  the  estate  for  the  purchase-money,  &c.  and  if 
the  purchaser  do  not  comply  with  the  conditions,  the 
vendor  may,  by  virtue  of  this  stipulation,  re-sell  the 
estate,  and  recover  the  deficiency  and  charges  from  the 
purcliaser(m)(ll).  And  if  the  money  produced  by  the 
second  sale  exceed  the  original  purchase-money,  the  pur- 
chaser who  has  violated  the  agreement  will  not  be  entitled 
to  the  surplus,  but  the  vendor  himself  will  be  entitled  to 
retain  it. 

A  stipulation  in  a  contract,  that  in  case  the  vendor  can- 
not deduce  a  good  title,  or  if  the  purchaser  shall  not  pay 
the  money  on  the  appointed  day,  the  agreement  shall  be 
void,  does  not  enable  either  party  to  vitiate  the  agree- 
ment, by  refusing  to  perform  his  part  of  it :  the  seller 
may  avoid  the  contract,  if  the  purchaser  do  not  pay  the 
money ;  the  purchaser  may  avoid  it,  if  the  seller  do  not 
make  a  title  ;  or  the  contract  will  be  void,  if  the  seller 
cannot  make  a  title  ;  but  it  is  not  sufficient  for  him  to  say 
that  he  cannot(7i). 

(/)  Seei^ost.  ch.  4. 

(to)  Ex  parte  Hunter,  6  Ves.  jun.  94  ;  and  See  Moss  v.  Matthews, 
3  Ves.  jun.  279  ;  Martens  v.  Adcock,  4  Esp.  Cas.  251  ;  sed  vidt  7 
Ves.  jun.  275.     See  Greaves  r.  Ashlin,  3  Camp.  466. 

(>t)  Roberts  v.  Wyatt,  2  Tau.  268. 

(11)  But  the  vendor  cannot  maintain  an  action  against  the  vendee, 
for  a  breach  of  the  contract  of  sale,  until,  on  a  re-salc,  the  deficit  shall 
have  been  ascertained.      IVcbsfcr  and  Ford  v.  Hoban,  7  Cranch,  399. 

(*40) 


AND  PRIVATE  CONTRACT. 


46 


If  the  purchaser,  after  breakino;  the  condition,  become 
bankrupt,  and  the  estate  is  re-sold  at  a  loss,  the  expenses 
(*)of  the  sale,  &c.  being  in  the  nature  of  unliquidated 
damages,  cannot  pe  proved  under  the  commission  ;  but 
as  the  vendor  has  a  lien  on  the  estate,  he  may  apply  the 
money  produced  by  the  last  sale  of  the  estate,  first,  in 
payment  of  those  articles  which  it  is  just  he  should 
receive,  but  which  he  could  not  prove  under  the  bank- 
ruptcy ;  then  towards  payment  of  the  original  purchase- 
money  ;  and  the  balance  may  be  proved  under  the  com- 
missi on  (o). 

In  a  recent  case(/)),  a  leasehold  house  and  furniture 
had  been  sold  for  4,370/.  and  the  assignment  was  executed, 
but  neither  it  nor  the  lease,  nor  possession,  had  been 
delivered  ;  and  the  purchaser  declining  to  complete  the 
contract,  the  sellers  brought  an  action  and  recovered 
the  whole  amount  of  the  purchase-money  and  costs. 
The  purchaser  became  a  bankrupt,  and  the  assignees 
took  possession  of  the  house.  The  seller  then  sold  the 
house  and  furniture  at  a  considerable  loss  :  and  Lord 
Eldon  considered  that  they  were  entitled  to  a  lien  for 
the  amount  of  the  sale  and  costs,  and  to  a  proof  for  the 
difference,  although  it  was  insisted  that  they  were  con- 
cluded by  their  action. 

If  a  house  be  sold,  witli  all  the  lights  belonging  to  it, 
and  it  is  intended  to  build  upon  the  adjoining  ground 
belonging  to  the  same  owner,  so  as  to  interfere  with  the 
lights,  a  right  so  to  build  should  be  expressly  reserved  : 
it  will  not  do  to  describe  the  house  as  abutting  on  build- 
ing ground  belonging  to  the  seller(<^). 

(o)  Ex  parte  Hunter,  6  Ves.  jun.  94  ;  Bowles  r.  Rogers,  ;7)iV/.  95, 
n. ;   1  Cooke,  123. 

(/;)  Ex  parte  Lord  Sealbrth,  1  Rose,  306  ;  ex  parte  Gyde,  1  Glyn 
St  Jam.  323. 

(9)  Swanborough  r.  Coventry,  9  Ring.  305  ;  S.  C.  2  Moo.  &  S.  36:^. 

(*41) 


4g  OF  SALES  BY  AUCTION 

The  condition  which  has  now  become  ahnost  universal, 
that  any  mistake  in  the  description  of  the  estate,  &c. 
(*)shall  not  annul  the  sale,  will  only  guard  against  unin- 
tentional errors. 

This  was  decided    by  Lord    Ellenborough    in  a  case 
where  the  estate  was  stated  in  the  particulars  to  be  about 
one  mile  froai  Horsham.     It  turned  out  that  the  estate 
was  between  three  and  four  miles  from  that  place.     Upon 
an  action  brought  by  the  purchaser  for  recovery  of  the 
deposit,  it  was  insisted   that  the  effect  of  the  misdescrip- 
tion was  saved  by  the  condition,  which  provided  that  no 
error  or  mis-statement  should  vitiate  the  sale.     But  Lord 
Ellenborough  said,   that  in  cases  of  this  sort  he  should 
always  require  an  ample  and  substantial  performance  of 
the  particulars  of  sale  unless  they  were  specifically  qual- 
ified.    Here  there  was  a  clause  inserted,  providing  that 
an  error  in  the  description  of   the  premises  should  not 
vitiate  the  sale,  but  an  allowance  should  be  made  for  it. 
This  he  conceived  was  meant  to  guard  against  uninten- 
tional errors,  not  to  compel  the  purchaser  to  complete  the 
contract  if  he  had  been  designedly  misled.     His  Lordship 
therefore  left  it  to  the  jury,  whether  this  was  merely  an 
erroneous  statement,  or  the  misdescription  was  wilfully 
introduced,  to  make   the  land  appear  more  valuable  from 
being  in  the  neighborhood   of  a  borough  town.     In  the 
former  case,  the  contract  remained  in  force,  but  in  the 
latter  case  the   plaintiff  was  to  be  relieved  from  it,  and 
was  entitled  to  recover  back  his  deposit.     The  plaintiff 
had  a  verdict ;  so  that  the  jury  must  have  thought  the 
misdescription  fraudulent(r)(12). 

(r)  Duke  of  Norfolk  v.  Worthy,  1  Camp.  Ca.  337 ;  see  Fenton  v. 
Brown,  14  Ves.  jun.  144 ;  1  Ves.  and  Bea.  377  ;  Stewart  v.  Alliston, 
1  Mer.  26  ;  Trower  v.   Newcome,  3  Mer.  704. 

(12)  See  M'Ferran  v.  Taijlor  ct  all.  3  Cranch,  270. 
{*42) 


AND  PRIVATE  CONTRACT.  4'^ 

So  in  the  case  of  Powell  v.  Doubble(5).  A  house  was 
described,  in  the  particulars  of  sale,  as  a  brick-built 
dwelling-house.  It  turned  out  that  the  house  was  built 
(*)partlj  of  brick  and  partly  of  timber,  and  that  some  parts 
of  the  exterior  were  only  composed  of  lath  and  plaster, 
and  that  there  was  no  party-wall  to  the  house.  Shortly 
after  the  sale,  the  ancient  chimnies  fell  inwards  through 
the  house,  but  it  was  not  proved  to  what  this  was  to  be 
attributed.  The  case  was  heard  upon  bill  and  answer. 
There  was  the  usual  condition  about  misdescriptions 
being  the  subject  of  allowance.  The  bill  was  dismissed 
with  costs,  as  the  Vice-Chancellor  was  of  opinion  that 
such  a  description  means  that  the  house  was  brick-built 
in  the  ordinary  sense,  and  that  it  was  not  a  subject  for 
compensation. 

And  although  the  condition  as  usual  provides  for  pay- 
ment of  a  compensation,  yet  the  sale  will  be  void  if  from 
the  nature  of  the  case  no  estimate  can  be  made  of  the 
diminution  in  value.  Thus,  where  a  reversion  was  sold 
after  the  death  of  a  person  aged  sixty-six,  in  case  he 
should  not  have  children,  it  turned  out  that  he  was  only 
sixty-four,  and  Lord  Tenterden  held,  that  the  sale  was 
void.  He  said  that  in  the  case  of  a  reversion  simply 
expectant  on  the  death  of  an  individual,  if  a  mistake  be 
made  in  his  age,  a  compensation  may  be  made  under  the 
condition,  for  the  difference  of  value  may  be  computed  ; 
but  where  there  is  an  additional  contingency,  such  as  that 
of  the  birth  of  future  children,  in  this  case  the  difference  of 
age  alters  the  likelihood  of  that  contingency,  and  in  such 
a  case  therefore  no  estimate  can  possibly  be  made  of  the 
difference  of  value  between  the  thing  described  and  the 
thing  sold,  and  the  contract  itself  must  be  vacated(/). 

(s)  MS.  V.  C.  15  June  1832. 

(/)  Sherwood  v.  Robins,  1  Mood.  &  Malk.  194  ;  S.  C.  3  Carr.  & 
P.  339. 

(*43) 


48 


OF  SALES  BY  AUCTION 


A  bidding  at  a  sale  by  auction  may  be  countermanded  at 
any  time  before  the  lot  is  actually  knocked  down(?/)(13)  ; 
(*)because  the  assent  of  both  parties  is  necessary  to 
make  the  contract  binding  ;  that  is  signified,  on  the  part 
of  the  seller,  by  knocking  down  the  hammer.  An  auction 
is  not  unaptly  called  locus  poenitentiGi.  Every  bidding  is 
nothing  more  than  an  offer  on  one  side,  which  is  not 
binding  on  either  side  till  it  is  assented  to.  If  a  bidding 
was  binding  on  the  bidder  before  the  hammer  is  down, 
he  would  be  bound  by  his  offer,  and  the  vendor  would 
not,  which  can  never  be  allowed. 

The  countermand  of  a  bidding  would,  in  some  cases, 
prove  of  the  most  serious  consequences  ;  and  it  might 
therefore  be  advisable  to  stipulate  in  the  conditions  of 
sale,  that  no  person  shall  retract  their  biddings. 

Although  the  duty  is,  by  the  acts,  imposed  on  the  ven- 
dor, yet  he  is  not  restrained  from  making  it  a  condition  of 
sale,  that  the  duty,  or  any  certain  portion  thereof,  shall 
be  paid  by  the  purchaser  over  and  above  the  price  bidden 
at  the  sale  by  auction  :  and  in  such  case  the  auctioneer  is 
required  to  demand  payment  of  the  duty  from  the  pur- 
chaser, or  such  portion  thereof  as  is  payable  by  him 
under  the  condition  :  and,  upon  neglect  or  refusal  to 
pay  the  same,  such  bidding  is  declared  by  the  act  to  be 
null  and  void  to. all  intents  and  purposes(i;)(I). 

{u)  Payne  v.  Cave,  3  Term  Rep.  148  ;  see  Routledge  v.  Grant,  4 
Bing.  653  ;  S.  C.  1  Moo.  &  P.  717.  As  to  goods,  see  Phillips  v.  Bis- 
toUi,  3  Dowl.  &  Ry.  822. 

{v)   17  Geo.  III.  c.  50.  s.  8.     See  7  Ves,  jun.  345. 


(I)  This  provision  seems  very  objectionable.  It  might  be  contended, 
that  if  a  purchaser  disliked  his  bargain,  his  refusal  to  pay  the  auction 
duty  would  annul  the  sale,  and  throw  the  whole  expense  attending  it 
on  the  vendor,  whose  estate  would  still  remain  unsold.  If  there  be  any 
foundation  for  this  argument,  the  clause  in  question  should  not  be  per- 
mitted to  stand  in  its  present  shape. 

(13)   See  Dpwriin^\v.  Brown  el  alt.  Hardin,  181. 

(*44)  '      ' 


AND  PRIVATE  CONTRACT. 


49 


It  is  usual  to  make  some  provision  respecting  the  pay- 
ment of  the  auction  duty,  as  that  the  vendor  and  pur- 
chaser shall  pay  it  in  equal  moieties ;  and  indeed,  where 
the  purchase-money  is  liable  to  the  duty,  a  stipulation  of 
this  nature  should  never  be  omitted,  unless  the  vendor 
(*)intend  to  pay  the  whole  duty  himself.  If  the  seller  can- 
not make  a  title,  the  purchaser  can  recover  from  him  the 
auction  duty  which  he  has  paid(7o).  And  if  the  sale  be 
not  binding,  the  auctioneer,  although  he  has  paid  the  duty, 
cannot,  under  the  common  condition,  recover  it  from  the 
purchaser^  as  he  is  called,  because,  although  the  highest 
bidder,  he  is  not  the  purchaser(.r). 

The  other  provisions  which  ought  to  be  inserted  in 
conditions  of  sale,  are  so  well  known  as  not  to  require 
notice. 

IV.  It  frequently  happens  that  estates  advertised  to  be 
sold  by  auction,  are  sold  by  private  contract,  instead  of 
being  brought  to  the  hammer,  and  the  sale  is  not  announc- 
ed to  the  public  till  the  day  fixed  for  the  auction,  and 
even  sometimes  not  till  the  auctioneer's  appearance  in  the 
auction-room.  Notice  of  an  intended  sale  by  auction  is 
said  to  be  a  contract  with  all  the  world  :  and  the  })arties  to 
whom  the  notice  is  addressed  ought  not  to  be  put  to  the 
expense  and  trouble  of  attending  the  auction  unless  the 
sale  is  to  take  place.  It  should  be  stated,  therefore,  in 
the  advertisements,  that  the  estate  will  be  sold  by  auction 
at  the  place  and  time  fixed  upon,  unless  previously  sold  by 
private  contract ;  in  which  case  notice  of  the  sale  shall  be 
immediately  given  to  the  public :  and  notice  should  be 
given  accordingly. 

If  an  auctioneer  sell  an  estate  without  a  sufficient  au- 
thority, so  that  the  purchaser  cannot  obtain  the  benefit  of 
his  bargain,  he  (the  auctioneer)  will   be  compelled  to  pay 

(w)   Cane  v.  Baldwin,  1  Stark.  65. 

(x)  Jones  V.  Nanney,  13  Pri.  76  ;  S.  C.  M'CIel.  25. 

VOL.  I.  7  (*45) 


5Q  OF  SALES  BY  AUCTION 

all  the  costs  which  the  purchaser  may  have  been  put  to, 
and  the  interest  of  the  purchase-money,  if  it  has  been 
unproductive  (?/)( 13). 

(*)If  an  attorney  or  agent  bid  more  for  an  estate  than 
he  was  empowered  to  do,  he  himself  would  be  liable  ;  but 
it  seems  that  his  principal  would  not(2:).  But  unless  he 
were  expressly  limited  as  to  price,  and  not  enabled  to  go 
beyond  the  limits  of  his  authority,  his  principal  would  be 
bound  («)( 14). 

Where  the  principal  denies  the  authority,  and  the  agent 
is  compelled  to  perform  the  agreement  himself,  because 
he  cannot  prove  the  commission,  he  may  afterwards  file  a 
bill  against  his  principal ;  and  if  the  principal  deny  the 
authority,  an  issue  will  be  directed  to  try  the  fact ;  and  if 
the  authority  be  proved,  the  principal  will  be  compelled 
to  take  the  estate  at  the  sum  which  he  authorized  the 
agent  to  bid(6).  If  the  agent  make  the  agreement  in 
that  character,  and  his  authority  is  denied,  and  he  pays 
the  deposit,  he  may  recover  it  back  in  his  own  name  if 
a  good  title  cannot  be  made(c).     If  the  agency  be  estab- 

iy)  Bratt  v.  Ellis,  MS. ;  Jones  v.  Dyke,  MS.  App.  Nos.  7  and  8 ; 
and  see  Nelson  v.  Aldridge,  2  Stark.  435 ;  Jaby  v.  Driver,  '2  Yo.  & 
Jer.  549. 

{z)   See  Ambl.  498  ;   10  Ves.  jun.  400. 

(c)  Hicks  «.  Hankin,  4  Esp.  Ca.  114.  See  East  India  Company 
V.  Hensley,  1  Esp.  Ca.  112. 

(6)  Wyatt  V.  Allen,  MS.  App.  No.  9. 

(c)   Langstroth  v.  Toulmin,  3  Stark.  145. 

(13)  See  Dusenbury  v.  Ellis,  3  Johns.  Cas.  70. 

(14)  See  Batty  v.  Carsivell  et  alt.  2  Johns.  Rep.  48.  Lee  v.  Mun- 
roe  et  alt.     7  Cranch,  366. 

The  principal  is  liable  for  the  acts  of  a  general  agent,  acting 
within  the  general  scope  of  his  authority  ;  and  a  third  person  cannot  be 
affected  by  private  instructions  from  the  principal  to  his  agent ;  but 
when  a  special  agent  acts  without  authority,  the  principal  is  not  bound. 
JVfwmv.  Commission  Co.     15  Johns.  Rep.  44. 

(*46) 


AND  PRIVATE  CONTRACT.  /r  j 

lislied,  the  agent  will  be  compelled  to  transfer  the  benefit 
of  the  contract  to  his  principal,  although  he  made  the  con- 
tract in  his  own  name,  and  swears  that  it  was  on  his  own 
account(f/). 

If  an  auctioneer  give  credit  to  the  vendee,  or  take 
a  bill,  or  other  security,  for  the  purchase-money,  it  is  en- 
tirely at  his  own  risk :  the  vendor  can  compel  him  to  pay 
the   money(e)(15).     As  between  an  agent  for  the  seller 

(d)  Lees  v.  Nuttall,  1  Russ.  &  My.  53. 

(e)  'Williams  v.  Millington,  1  H.  Blackst.  81.  See  Wiltshire  v.  Sims, 
1  Camp.  N.  P.  258. 

(15)  So,  if  an  auctioneer  depart  from  his  instructions,  he  is  liable  to 
his  employer  for  all  the  damage  sustained  thereby  ;  as  where  the  de- 
fendant, who  was  an  auctioneer,  was  directed  to  sell  certain  goods  at 
auction,  dn  a  credit,  taking  security  from  the  purchasers  for  the  amount 
of  their  imrchases ;  the  goods,  were  sold,  and  lands  with  security,  were 
taken  for  a  part,  and  the  rest  were  delivered  to  the  purchasers  without 
security  ;  on  closing  the  account  of  sales  with  the  plaintiffs,  the  defen- 
dant paid  a  part  of  the  amount  in  cash,  and  offered  the  bonds  and  open 
accounts  of  the  purchasers  for  the  residue,  which  were  refused  ;  it  was 
held,  that  the  defendant  was  liable  for  the  amount  both  of  the  bonds 
and  open  accounts.      Wilkinson  v.  Campbell,  1  Bay,  169. 

Where  a  factor  has  been  instructed  to  sell  goods  for  cash,  and  he  per- 
mits the  purchaser  to  take  them  away  without  payment  at  the  time  of 
sale,  he  is  liable,  though  a  usage  among  factors  is  proved  of  allowing  to 
purchasers  a  week  or  fortnight  to  make  payment,  where  the  sale  has 
been  for  cash.  Barksdale  v.  Brown,  1  Nott  &  Mc  Cord,  517.  See 
Van  Allen  v.  Vanderpool,  6  Johns.  Rep.  69.  Goodenow  v.  Tyler,  7 
Mas.  Rep.  36,  42.     James  v.  M'  Credie,  1  Bay,  294. 

An  auctioneer  selling  a  house  for  a  sum  less  than  the  price  limited  by 
his  instructions,  and  crediting  the  vendor  the  full  price,  is  bound  by  it, 
though  the  price  obtained  was  the  full  value  of  the  property  sold.  Hig- 
ginson  v.  Fahre's  Exrs.  3  Des.  90. 

In  Steele  et  al  v.  Ellmakcr,  11  S.  &  R.  86,  where  goods  were  scut 
to  auctioneers  "  to  be  disposed  of  by  them  at  the  average  price  of  50 
per  cent  advance  on  the  sterling  cost,  as  quoted  in  the  invoice,  but  not 
otherwise  ;"  but  the  defendants  sold  them  for  less :  held,  that  the  plain- 
tiffs Merc  entitled  to  recover  the  difference.  Tilghman,  C.  J.  after  a 
commentary  upon  the  English  cases,  concluded  thus  ;     "  It  is  agreed 


62 


OF  SALES  BY  AUCTION 


and  a  purchaser,  it  seems  that  an  agent  with  an  undisclos- 
ed principal  may  vary  the  terms  of  payment  after  the  sale 
is  completed,  the  principal  may  interfere  at  any  time  before 
payment,  but  not  to  rescind  what  has  been  before  done. 
(*)This  is  essential  to  the  safety  of  purchasers.  But  if 
a  man  sell,  acting  as  a  broker,  the  moment  the  sale  is 
completed  he  is  functus  officii.  The  terms  of  the  con- 
tract cannot  then  be  altered  except  by  the  authority  of  the 
principal(/)(16). 

If  a  purchaser  pay  his  money  to  the  agent  of  the  vendor 
before  the  time  when  the  latter  is  authorized  to  receive 
it,  he  makes  that  agent  his  own  for  the  purpose  of  paying 
over  the  money  to  the  right  owner(^). 

If  the  seller  for  a  valuable  consideration  direct  his  agent 
to  pay  over  the  proceeds  of  the  sale  to  a  third  person,  he 
cannot  revoke  the  ordcr(//). 

The  auctioneer  should  not  part  with  the  deposit  until 
the  sale  be  carried  into  effect(f)  ;  because  he  is  considered 

(/)   See  Blackburn  v.  Scholes,  2  Camp.  343. 
{g)  See  Panither  v.  Gaitskill,  13  East,  432. 
(/»)   Metcalfi'.  Clough,  2  Mann.  &  Syl.  178. 

(i)  Buriough  V.  Skinner,  6  Burr.  2639  ;  Berry  tJ.  Young,  2  Esp.  Ca. 
640,  n. ;   Spurrier  v.  Elderton,  5  Esp.  Ca.  1  ;  and  see  post.  ch.  10. 

on  all  hands,  (even  by  Lord  Mansfield)  that  it  is  fair  to  limit  the  price, 
provided  it  be  made  known.  The  defendant  then,  being  under  no  in- 
junction of  secrecy,  might  have  complied  with  the  plaintiff's  orders, 
without  violating  the  most  fastidious  rules  of  morality.  Or,  if  he 
thought  there  would  be  some  difficulty  in  doing  this,  (the  order  being 
not  to  sell  under  a  certain  average)  he  might  have  said  so,  and  then  the 
plaintiff  must  have  been  more  explicit  in  his  directions.  But  without 
making  any  objection,  or  intimating  any  difficulty,  the  defendant  accept- 
ed the  commission,  and  then  sold  the  goods,  contrary  to  his  instructions. 
I  confess,  I  cannot  see,  how  he  can  be  justified,  or  what  should  prevent 
the  plaintiff's  recovery,  as  there  is  no  suggestion  of  any  thing  unfair,  in 
his  conduct,  or  intentions. 

(16)  See  Kelleij  v.  Munsoir,  7  Mass.  Rep.  319. 

(*47) 


AND  PRIVATE  CONTRACT.  53 

as  a  Stakeholder,  or  depositary  of  it(j).  In  a  late  case, 
where  the  auctioneer  was  also  the  attorney  of  the  seller, 
and  paid  over  the  money  to  the  seller,  after  he  knew  that 
objections  to  the  title  had  been  raised,  an  action  against 
him  for  the  dej)Osit  was  sustained,  but  the  Judges  cau- 
tiously abstained  from  pointing  out  the  duty  of  an  auc- 
tioneer in  any  other  case(A:).  However,  in  a  later  case, 
where  the  auctioneer  had  paid  over  the  deposit  to  the 
vendor,  without  any  notice  from  the  purchaser  not  to  do 
so,  and  before  any  defect  of  title  was  discovered,  it  was 
held  that  the  purchaser  (the  title  being  defective)  might 
recover  the  deposit  from  the  auctioneer(/). 

If  both  the  parties  claim  the  deposit,  the  auctioneer 
may  file  a  bill  of  interpleader,  and  pray  for  an  injunction, 
(*)which  will  be  granted,  upon  payment  into  court  of  the 
deposit(m). 

But  an  auctioneer  cannot  maintain  a  bill  of  inter- 
pleader if  he  insist  upon  retaining  out  of  the  deposit  either 
his  commission  or  the  auction  duty  ;  for  interpleader  is 
where  the  plaintiff  is  the  holder  of  a  stake  which  is  equal- 
ly contested  by  the  defendants,  as  to  which  the  plaintiff  is 
wholly  indifferent  between  the  parties,  and  the  right  to 
which  will  be  fully  settled  by  interpleader  between  the 
defendants(w). 

If  upon  a  bill  filed  for  an  injunction,  the  Court  order  the 
deposit  to  be  paid  into  court,  it  will,  it  seems,  be  after 
deducting  the  auctioneer's  charges  and  expenses(o), 
although  perhaps  this  deserves  re-consideration  ;  for  the 
purchaser's  deposit  may  not  ultimately  be  the  fund  out  of 

ij)  Jones  r.  Edney,  cor.  Lord  Ellenborough,  4  Dec.  1812. 
(A)  See  Edwards  1'.  Hodding,  5  Taunt.  815;   1  Marsh.  377. 
(/)   Gray  v.  Giitleridgc,  1  Mann.  &  Ryl.  614. 
{m)   Farebrolher  r.  Prattent,  5  Price,  303  ;    1  Dan.  64. 
(n)  Mitchell  v.  Hayne,  2  Sim.  &  Stii.  63 ;  but  as  to  the  auction  du- 
ty, see  Farebrother  r.  Prattent. 

(0)  Annesley  v.  Muggridge,  1  Madd.  693. 

(*48) 


54  OF  SALES  BY  AUCTION 

which  those  charges  are  to  be  paid ;  but  this  is  done  with- 
out prejudice  to  any  question  as  to  so  much  of  the  deposit 
as  is  retained(p). 

In  a  case  where  1,000/.  was  paid  as  a  deposit  to  an  auc- 
tioneer, according  to  the  conditions  of  sale,  and  the  vendor 
opposed  two  motions  by  the  purchaser,  in  an  original  and 
cross-cause  filed  concerning  the  contract,  for  payment  of 
the  deposit  into  court,  and  the  auctioneer  became  a  bank- 
rupt, the  loss  was  holden  to  fall  on  the  vendor,  although 
the  second  motion  had  succeeded,  and  the  day  named  for 
payment  of  the  money  into  court  was  subsequent  to  the 
bankruptcy (5').  And  perhaps  a  loss  by  the  insolvency  of 
the  auctioneer  will,  in  every  case,  fall  on  the  vendor,  who 
nominates  him,  and  whose  agent  he  properly  is(r). 

(*)And  unless  an  auctioneer  disclose  the  name  of  his 
principal,  an  action  will  lie  against  him  for  damages  on 
breach  of  conJract(5). 

Generally  speaking,  an  auctioneer  is  not  liable  for 
interest ;  but  that  subject  will  be  considered  fully  in  the 
chapter  on  Interest(/). 

If  an  auctioneer  do  not  insert  usual  clauses  in  the  con- 
ditions of  sale,  whereby  the  sale  of  the  estate  is  defeated, 
he  cannot  recover  any  compensation  from  the  vendor  for 
his  services  :  and  it  is  immaterial  that  he  read  over  the 
conditions  of  sale  to  the  seller,  who  approved  of  them.  The 
same  rule  of  course  applies  to  negligence  generally  on  the 
part  of  the  auctioneer,  whereby  the  sale  is  defeated(z«). 

(p)   Yates  V.  Farebrother,  4  Madd.  239. 

(9)  Brown  v.  Fenton,  et  e  cont.  Rolls,  23  June,  1807,  MS.  ;  S.  C. 
14  Ves.  jun.  144. 

(r)  See  2  H.  Blackst.  592  ;  13  Ves.  jun.  602  ;  14  Ves.  jun.  150  ; 
Annesley  v.  Muggridge,  1  Madd.  693  ;  Smith  v.  Lloyd,  1  Madd.  618. 

(s)  Hanson  v.  Roberdeau,  Peake's  Ca.  120;  see  Simon  v.  Motives, 
3  Burr.  1921  ;  Owen  v.  Gooch,  2  Esp.  Ca.  567;  12  Ves.  jun.  352, 
484. 

(t)  Post.  ch.  10.  s.  1. 

(n)   Denew  v.  Dcvcrall,  3  Campb.  451. 

(*49) 


AND  PRIVATE  CONTRACT.  55 

Where  a  man  is  completely  the  agent  of  the  vendor, 
a  payment  to  him  is  in  law  a  payment  to  the  principal ; 
and  in  an  action  against  the  latter  for  recovery  of  the 
deposit,  it  is  immaterial  whether  it  has  actually  been  paid 
over  to  him  or  not(v)(\l). 

An  auctioneer  being  only  an  agent,  may  safely  pay 
over  the  proceeds  of  the  sale  to  the  seller,  his  principal, 
although  the  latter  is  to  his  knowledge  in  insolvent  cir- 
cumstances (m;). 

It  may  here  be  remarked,  that  a  deposit  is  considered 
as  a  payment  in  part  of  the  purchase-money (.r),  and  not 
as  a  mere  pledge ;  which  was  also  the  rule  of  the  civil 
law,  where  money  was  given  ;  but  if  a  ring,  &c.  was 
(*)given  by  way  of  earnest,  or  pledge,  it  was  to  be  re- 
turned(y). 

If,  pending  a  suit  for  specific  performance,  a  deposit  be 
laid  out  in  the  public  funds,  under  the  authority  of  the 
Court,  it  will  be  binding  on  both  vendor  and  vendee ; 
and,  if  laid  out  without  opposition  by  the  seller,  it  must 
be  presumed  to  be  with  his  assent ;  and,  in  either  case, 
he  must  take  the  stock  as  he  finds  it(z). 

If  a  purchaser  is  entitled  to  a  return  of  his  deposit,  he 
is  not  compellable  to  take  the  stock  in  which  it  may  have 
been  invested,  unless  such  investment  were  made  under 
the  authority  of  the  Court,  or  with  his  assent.  And  an 
assent  will  not  be  implied  against  a  party  because  notice 

(v)  Duke  of  Norfolk  v.  Worthy,  1  Camp.  N.  P.  337. 

(w)  White  V.  Bartlett,  9  Bing.  378;  S.  C.  2  Moo.  &  S.  516. 

(t)  Pordage  v.  Cole,  1  Saund.  319  ;  see  Main  v.  Melbourn,  4  Yes. 
jun.  720 ;  Klinitz  v.  Surry,  5  Esp.  Ca.  267 ;  Ambrose  v.  Ambrose,  1 
Cox.  194. 

(y)  Vinnius,  1.  3.  24. 

(r)  Poole  V.  Rudd,  3  Bro,  C.  C.  49  ;  and  see  Doyley  r.  the  Coun- 
tess of  Powis,  2  Bro.  C.  C.  32 ;   1  Cox,  206. 


(17)   See  Taber  v.  Perrot  el  al.  2  Gallis.  565. 

(*50) 


55  OF  SALES  BY  AUCTION 

was  given  to  him  of  the  investment,  to  which  he  made  no 
reply(a).  Therefore,  where  the  deposit  is  considerable, 
and  it  is  probable  that  the  purchase  may  not  be  com- 
pleted for  a  long  time,  it  seems  advisable  for  the  parties 
to  enter  into  some  arrangement  for  the  investment  of  the 
deposit. 

As  a  vendor  will  not  be   subject  to  any  loss  by  the 
investment  of  the  purchase-mqpey  in   the  funds  without 
his  assent,  so  he  will  not  be   entitled  to  any  benefit  by 
a  rise    in  the  funds,   although  the  purchaser  gave  him 
notice  of  the  investment ;  unless  he  (the  vendor)  agreed 
to  be  bound  by  the  appropriation.     Sir  William  Grant 
has  observed,  that  a  deposit  does  not  impose  a  liability  or 
responsibility  upon   the  party    to  whom  notice  of  it  is 
given ;  throwing  upon  him  any  risk  as  to  the  principal. 
The  principal  remains  entirely  at  the  risk  of  the  party 
making  the  deposit.     He  cannot,  by  depositing  the  money 
with  his  bankers,  throw  the  risk  of  their  credit  upon  the 
(*)other  parties.     They  are   not  called  upon   to  express 
their  opinion  of  that   bank,  or  to  say  any  thing  upon  the 
subject.     There  is  no  difference  between  that  and  a  de- 
posit at  the  Bank  of  England,  or  a  conversion  of  the 
money  into  stock  ;  as  the  one  party  has  no  more  right  to 
make  the  other  consent  to  have  the  fund  laid  out  in  stock 
than  in  a  private  bank(6). 

No  objection  can  be  made  to  the  whole  of  the  deposit 
required  by  the  conditions  not  being  paid  by  the  pur- 
chaser, if  the  vendor,  after  the  sale,  agree  to  accept  a  less 
sum(c). 

Although  the  deposit  be  forfeited  at  law,  yet  equity  will, 
in   general,  relieve  the  purchaser,  upon  his  putting  the 

(a)  Roberts  v.  Massey,  13  Ves.  jun.  661. 

(b)  Roberts  v.  Massey,  ubi  sup ;   Acland  v.  Gainsford,  2  Mad.  28. 

(c)  Hansen  r.  Roberdeau,  Peake's  Ca.  120.  See  ex  parte  Gwynne, 
12  Ves.  jun.  378;  and  1  Campb.  Ca.  427, 

(*61) 


AND  PRIVATE  CONTRACT. 


57 


vendor  in  the  same  situation  as  he  would  have  been  in 
had  the  contract  been  performed  at  the  time  agreed 
upon(f/).  But  if  a  bill  by  a  purchaser  for  a  specific  per- 
formance is  dismissed,  the  Court  cannot  order  the  deposit 
to  be  returned  :  as  that  would  be  decreeing  relief(e). 

Where  the  seller  files  the  bill  he  submits  to  the  juris- 
diction, and  although  his  bill  is  dismissed,  the  Court 
will  compel  him  to  repay  the  deposit,  and  with  interest, 
where  that  ought  to  be  paid.  This  was  first  decided 
by  Lord  Eldon,  and  has  since  been  followed  by  other 
judges. 

It  is  well  settled,  that  assignees  of  a  bankrupt  are  not 
bound  to  take  what  Lord  Kenyon  calls  a  damnosa  hcere- 
ditas,  property  of  the  bankrupt,  which  so  far  from  being 
valuable,  would  be  a  charge  to  the  creditors  ;  but  they 
may  make  their  election ;  if,  however,  they  do  elect  to  take 
(*)the  property,  they  cannot  afterwards  renounce  it,  because 
it  turns  out  to  be  a  bad  bargain(/).  This  observation  is 
made  as  an  introduction  to  a  c'dse(g),  in  which  it  was 
decided  that  the  assignees  of  a  bankrupt  could  not  be 
charged  as  assignees  of  the  lease,  where  they  had  not  en- 
tered into  actual  possession,  but  merely  put  up  the  property 
to  sale  by  auction  without  stating  to  whom  it  belonged,  or 
on  whose  behalf  it  was  sold,  and  no  person  bid  at  the  sale  : 
the  Court  considered  this  as  a  mere  experiment  to  enable 
.the  assignees  to  judge,  whether  the  lease  were  beneficial  or 
not,  and  compared  it  to  a  valuation  by  a  surveyor.  If  the 
assignees  do  accept  the  property,  the  bankrupt  is  by  a  late 

(d)  Vernon  v.  Stephens,  2  P.  Wms.  66  ;  Moss  v.  Matthewe,  3  Ves. 
jun.  279. 

(«)   Bennet  College  v.  Carey,  3  Bro.  C.  C.  390. 

(/)  See  7  East,  342. 

ig)  Turner  v.  Richardson,  7  East,  336  ;  Wheeler  v.  Bramah,  3 
Campb.  370  ;  Copeland  v.  Stephens,  I  Barn.  &  Aid.  693  ;  and  see 
Carter  v.  Warne,  1  Mood.  &  Malk.  479  ;   S.  C.  1  Carr.  &  P.  191. 

VOL.   I.  8  (*62) 


^g  OF  SALE  6  BY  AUCTION 

act(/i)  relieved  from  the  rent  and  covenants,  and  if  the 
assignees  decline  the  same,  the  bankrupt  is  not  to  be 
liable  in  case  he  deliver  up  the  lease  to  the  lessor  within 
fourteen  days,  and  the  lessor  is  enabled  in  a  summary 
way  to  compel  the  assignees  to  make  their  election  either 
to  accept  the  same  or  deliver  up  the  lease  and  possession 
of  the  estate. 

Immediately  after  sale  of  an  estate  by  auction,  an  agree- 
ment(z)  to  complete  the  purchase  should  be  signed  by  the 
parties  or  their  agent,  because  sales  by  auction  of  estates 
are  within  the  statute  of  frauds(jj  ;  and  consequently,  the 
contract  could  not  be  enforced  against  either  of  the  parties 
who  had  not  signed  an  agreement(18).  .  Although  a  man 
purchase  several  lots,  yet  a  distinct  contract  arises  upon  each 
lot,  and  consequently,  if  no  lot  is  of  the  value  of  20/.,  no 
stamp  is  necessary,  although  altogether  they  are  of  more 
(*)value(A;)  ;  but  they  may  all  be  comprised  in  one  agree- 
ment. 

The  above  observation,  in  regard  to  the  necessity  of  a 
written  agreement,  of  course,  applies  to  sales  by  private 
contract(/) ;  as  indeed  do  all  the  foregoing  observations, 
which  are  not  in  their  nature  applicable  exclusively  to 
sales  by  auction. 

(/{)  6  Geo.  IV.  c.  16,  s.  75.  See  ex  jiarie  Vomeroy,  1  Rose,  67; 
ex  parte  Nixon,  1  Rose,  446. 

(i)  See  a  form  of  an  agreement,  Appendix,  No.  5. 

{j)  See  post.  ch.  3. 

(k)   Emmerson  v.  Heelis,   2  Taunt.  38. 

(/)  See  post.  ch.  3.     See  a  form  of  an  agreement,  Appendix,  No.  6. 

(18)  It  has  been  decided,  that  an  auctioneer  is  the  authorized  agent 
of  the  purchaser  of  land,  at  auction,  to  sign  the  contract  of  sale  for 
him,  as  the  highest  bidder ;  and  that  writing  his  name,  as  the  purchas- 
er, in  the  memorandum  of  the  sale,  by  the  auctioneer,  immediately  on 
receiving  his  bid  and  knocking  down  the  hammer,  is  a  sufficient  sign- 
ing of  the  contract  within  the  statute  of  frauds.  M'Comb  v.  Wright, 
4  Johns.  Ch.  Rep.  659.  See  Davis  v.  Robertson,  1  Rep.  Con.  Ct.  71. 
Cleaves  v.  Foss,  4  Greenl.  1. 

(*53)  I 


AND  PRIVATE  CONTRACT.  59 

As  agreements  for  sale  of  estates  are  generally  entered 
into  by  the  attornies  of  the  parties,  it  may,  in  this  place, 
be  proper  to  observe,  that  where  an  attorney  enters  into 
an  agreement  on  behalf  of  his  principal,  the  agreement 
should  be  made  and  signed  in  the  name  of  the  principal, 
by  him  as  attorney  :  for  if  an  attorney  covenant  in  his 
own  name  for  himself,  his  heirs,  he.  he  will  himself  be 
personally  bound,  though  he  be  described  in  the  instru- 
ment as  covenanting  for  and  on  the  part  of  his  princi- 

pal(w0(19)- 

Where    an  estate  is  sold  in  lots,   whether  by  public 

auction  or  private  contract,  it  may  be  advisable  for  the 
vendor  to  take  attested  copies  of  the  parcels  included  in 
the  different  conveyances  ;  in  order  to  satisfy  a  cautious 
purchaser  of  any  part  of  the  estate,  that  no  part  of  the 
estate  bought  by  him  is  included  in  any  of  the  conveyan- 
ces to  the  other  purchasers. 

It  may  here  be  observed,  that  if  a  man  agree  to  get 
another  so  much  for  his  estate,  and  actually  provide  a  pur- 
chaser with  whom  the  owner  agrees  for  the  sale  of  the 
property,  at  the  sum  stipulated,  and  a  deposit  is  paid,  the 
first  agreement  will  be  performed,  although  the  purchaser 
(*)cannot  perform  the  agreement,  if  the  seller  let  him  off, 
and  retain  the  deposit  as  a  forfeiture. (w) 

If  an  agent  for  sale  of  an  estate  is  to  be  paid   a  per- 

(m)  Appleton  v.  Biiiks,  5  East,  148  ;  Kendray  v.  Hodsion,  5  Esp. 
Ca.  228 ;  Norton  v.  Herron,  1  Ry.  &  Mood.  229  ;  S.  C.  1  Carr.  &  P. 
648  ;  Spittle  v.  Lavender,  1  Moore,  270  ;  Grey  v.  Gutteridge,  1  Man. 
&  Ry.  614.  See  Duke  of  Norfolk  v.  Worthy,  1  Camp.  N.  P.  337; 
Brown  v.  Morris,  2  Taunt.  375. 

(n)  Horford  v.  Wilson,  1  Taunt.  12. 

(19)  See  Duval  v.  Craig  et  al.  2  Wheat.  45,  56.  Tippelsy.  Walker, 
4  Mass.  Rep.  595.  Thatcher  v.  Diyismorc,  5  Mass.  Rep.  299.  Fors- 
ter  V.  Fuller,  6  Mass.  Rep.  58.  Sumner  v.  Williams,  8  Mass.  Rep. 
162.  Thttijer  v.  Wendall,  1  Galiis.  37.  White  v.  Skinner,  13  Johns. 
Rep.  307. 

(*54) 


gQ  OF  SALES  i;V  AUCTION,  kc. 

centage  on  the  sum  oblained,  he  cannot  recover  his  com- 
mission until  the  money  is  received  by  the  principal.  If 
therefore  it  is  paid  into  the  bank  under  an  act  of  Parlia- 
ment, by  the  autiiority  of  which  the  property  was  pur- 
chased, the  commission  is  not  recoverable  until  at  least 
the  seller's  right  to  the  money  is  ascertained,  and  it  is 
owing  to  his  wilful  default  that  he  has  not  received  it(o). 
Where  a  man  had  bought  an  estate  and  paid  a  deposit, 
but  the  title  had  not  been  made  out,  and  being  desirous 
of  compromising  with  his  creditors,  applied  to  the  seller 
to  cancel  the  contract  and  return  the  deposit,  which  he 
refused  to  do,  but  said  that  he  would  never  sue  the  pur- 
chaser on  the  contract,  and  thereupon  the  compromise 
w  ith  the  creditors  proceeded  ;  it  was  held  that  it  would 
have  been  a  fraud  in  the  seller  if  he  had  attempted  to 
enforce  the  contract,  and  therefore  the  purchaser  was  not 
allowed  to  recover  the  deposit,  although  the  title  had  not 
been  made  oat(p)(20). 


V.  By  a  late  nct(q),  the  following  duties  are  imposed 
upon  every  valuation  or  appraisement  of  any  estate,  or 
effects,  real  or  personal,  or  of  any  interest  therein,  or  of 
the  annual  value  thereof;  viz.  where  the  amount  does 
not  exceed  50/.,  a  duty  of  2s.  6d. ;  where  it  exceeds  50/. 
but  does  not  exceed  100/.,  a  duty  of  5s.;  where  it  ex- 
ceeds 100/.  and  does  not  exceed  200/.,  a  duty  of  IO5.  ; 
where  it  exceeds  200/.  and  does  not  exceed  500/.,  a  duty 
of  155. ;  and  where  it  exceeds  500/.,  a  duty  of  205. 

(0)  Bull  r.  Price,  7  Bing.  237  ;  5  Moo.  &  P.  2. 

(  p)   Clark  r.  Upton,  3  Mann.  &  Ryl.  89. 

(q)  55  Geo.  III.  c.  148.     See  Lees  v.  Burrows,  12  East,  1. 


(20)   See  Treatise  on  Principal  and  Agent,  (1836)  tit.  Auctioneers, 
where  all  the  American  cases  are  abridged. 


[  61   ] 


(*)CHAPTER  II. 

OF    SALES    UNDER    THE    AUTHORITY    OF    THE    COURTS 
OF    EQUITY. 


SECTION  I. 

Of  the  Proceedings  from  the  Advertisements  to  the 
Conveyance. 

We  have  already  seen,  that  sales  under  the  decrees  of 
the  Court  of  Chancery,  or  Exchequer,  are  not  liable  to  the 
auction  duty  ;  and  therefore  if  public  notice  of  a  vendor's 
intention  to  bid  for  the  estate  is  not  necessary,  where 
a  single  bidder  is  employed  to  prevent  the  estate  from 
being  sold  at  an  under-value(2;),  it  follows,  that  wo  notice 
need  be  given  previously  to  the  sale  of  an  estate  under 
a  decree,  of  the  vendor's  intention  to  buy  in  the  estate,  if 
a  particular  price  be  not  bid  for  it.  At  the  same  time,  it 
must  be  observed,  that  where  a  fraud  is  committed  on  the 
purchaser,  by  puffing  at  the  sale,  it  cannot  be  supported, 
any  more  than  a  sale  by  auction  under  similar  circum- 
stances(«)  ;  but  the  Court  will,  in  a  proper  case,  authorize 
a  bidding  to  be  reserved,  and  to  be  made  one  of  the  con- 
ditions of  sale(6). 

Where  an  estate  is  directed  to  be  sold  before  a  Master, 
the  particulars  of  sale  are  prepared  by  the  plaintiff's  soli- 
citor :  after  they  are  allowed  by  the  Master,  the  adver- 
tisement for  sale  must  be  prepared,  either  by  the  plaintiff's 
solicitor,  or  by  the  Master's  clerk,  and  the  signature  of 

[z)  Vide  Supra,  p,  13. 

(a)  Vide  supra,  p.  24. 

(b)  Jervoist  v.  Clark,  1  Jac.  &  Walk.  389. 


62 


OF  SALES  UNDER  THE  AUTHORITY 


(*)the  Master  must  be  obtained  to  authorize  the  insertion 
of  the  advertisements  in  the  Gazette.  There  are  always 
two  advertisements(^) ;  in  the  first,  no  time  is  appointed 
for  the  sale.  About  three  weeks  or  a  month  after  the 
insertion  of  the  first  advertisement,  a  warrant  must  be 
taken  out  to  fix  a  time  for  the  sale,  and  it  must  be  served 
on  all  the  parties'  clerks  in  court.  The  warrant  being 
attended,  the  Master,  with  the  approbation  of  all  parties, 
will  fix  the  time  ;  and  the  second  advertisement,  which 
is  usually  called  the  peremptory  advertisement,  stating 
the  time,  must  then  be  prepared,  and  inserted  in  the 
Gazette(^?).  The  estate  may  be  sold  either  before  the 
Master  ;  or,  if  from  the  situation  and  nature  of  the  estate, 
the  sale  ought  not  to  take  place  in  town,  it  may  be  sold 
in  the  country  before  the  Master's  clerk,  or  any  other 
person  authorized  by  the  Master(e). 

The  plaintiff's  solicitor  should  attend  at  the  sale,  which 
is  conducted  in  the  following  manner :  The  Master's 
clerk  prepares  a  particular  of  the  lots  to  be  sold,  with 
spaces  between  each  lot.  The  lots  are  successively  put 
up  at  a  price  offered  by  any  person  present,  and  every 
bidder  must  sign  his  name  and  the  sum  he  offers,  in  the 
space  on  the  particular,  under  the  lot  for  which  he  bids  ; 
and  formerly  2s.  6d.  was  paid  to  the  Master's  clerk  for 
every  bidding  ;  but  that  regulation,  which  had  a  tendency 
to  damp  the  sale,  has  lately  been  very  properly  abolished, 
and  in  lieu  of  the  half-crowns,  a  sum  is  allowed  to  the 
clerk,  as  part  of  the  expenses  attending  the  sale.(l)  The 
best  bidder  is  of  course  declared  the  purchaser.     If  any 

(c)  2  Fowl.  Piac.  306. 

(d)  See  1  Turner's  Practice  by  Yen.  127. 

(e)  See  2  Fowl.  Prac.  305. 

(I)  This  will  of  course  be  now  corrected  under  the  authority  of  the 
late  act  3  &  4  W.  4,  c.  94. 
(*56) 


OF  THE  COURTS  OF  EQUITY.  53 

(*)lots  are  not  sold,  they  must  be  again  advertised  for 
sale(/). 

The  payment  of  a  deposit,  and  the  investment  of  it  in 
the  funds,  are  governed  by  the  same  rules  as  are  adhered 
to  where  the  contract  is  between  party  and  party(^). 

The  Court  will,  on  motion,  discharge  the  purchaser, 
and  substitute  any  other  derson  in  his  stead  ;  but  this 
will  not  be  done  unless  such  person  pay  in  the  money, 
and  an  affidavit  be  made  that  there  is  no  under-bargain  ; 
for  the  new  purchaser  may  give  the  other  a  sum  of  money 
to  stand  in  his  place,  and  so  deceive  the  Court(A). 
Formerly  the  practice  seems  to  have  been  to  require  the 
consent  of  all  the  parties  in  the  cause,  as  well  as  the 
consent  of  the  original  purchaser(2). 

If  the  purchaser  resell  at  a  profit  behind  the  back  of 
the  Court,  before  his  purchase  is  confirmed,  the  second 
purchaser  is  considered  a  substituted  purchaser,  and  must 
pay  the  additional  price  into  Court  for  the  benefit  of  the 
estateQ). 

Although  more  of  an  estate  is  sold  than  is  necessary 
for  the  purposes  of  the  trust  by  virtue  of  which  the 
decree  was  made,  yet  the  purchaser  can  make  no  objec- 
tion to  it,  the  decree  being  a  sufficient  security  to  him, 
as  it  cannot  appear  but  that  it  was  right  to  sell  the  whole. 
If,  however,  the  decree  were,  that  the  Master  should  sell 
Greenacre,  and  he  sells  Blackacre,  an  objection  to  the 
sale  would  be  good  (A:)  ;  although  it  seems  that  it  may  be 
laid  down  as  a  general  rule,  that  a  purchaser  shall  not 
(*)lose  the   benefit  of  his  purchase  by  any  irregularity  of 

(/)   See  1  Turn.  Prac.  129  ;  2  Fowl.  Prac.  306,  307. 
ig)    Vide  supra,  p.  60  ;   Ambrose  v.  Ambrose,  1  Cox,  19'i. 
{h)  Rigby  r.  M'Namara,  6   Yes.  jun.  515  ;  Vale  r.  Davenpoit,  6 
Ves.  jun.  615. 

(t)  Matthews  v.  Stubbs,  2  Bro.  C.  C.  291. 

ij)  Nodder  v.  Ruffin,  1  Taunt.  341. 

(A)   Lutwych  v.  Winford,  2  Bro.  C.  C.  248. 

(*57)  (*58) 


64 


OF  SALES  UNDER  THE  AUTHORITY 


the  proceedings  in  a  cause(/).  If  a  decree  is  obtained  by 
fraud,  it  may,  of  course,  be  relieved  against(m)  ;  and  it 
has  been  said  that  a  purchaser  is  bound  to  see,  that,  at 
least  as  far  as  appears  on  the  face  of  the  proceedings 
before  the  Court,  there  is  no  fraud  in  the  case(n)  ;  but, 
if  the  Court  itself  be  imposed  upon,  it  would  be  a  strong 
measure  to  iynply  notice  of  the  fraud  to  the  purchaser, 
from  the  very  proceedings  before  the  Court.  But  it  is 
a  settled  maxim  that  persons  purchasing  under  decrees  of 
the  Court  are  bound  to  see  that  the  sale  is  made  accord- 
ing to  the  decree(o)(21). 

(/)  Lloyd  V.  Johnes,  9  Yes.  jun.  37;  Curtis  v.  Price,  12  Ves.  jun. 
89  ;  Bennelt  v.  Harnell,  2  Scho.  &  Lef.  £66  ;  Burke  v.  Crosbie,  1 
Ball  &  Beat.  489  ;  Lightburne  v.  Swift,  2  Ball  &  Beat.  207.  See 
Baker  t'.  Morgan,  2  Dow,  626.  Mullins  v.  Townsend,  1  Dow  & 
Chirk,  430. 

(m)  Kennedy  v.  Daly,  1  Schoales  &  Lefroy,  366 ;  Giffard  v.  Hort, 
ih. 

(n)   Gore  v.  Stacpole,  1  Dow,  30. 

(o)   Colclough  V.  Sterum,  3  Bligh,  181. 

(21)  In  Reed  v.  Carter,  1  Black.  Indiana  R.  410,  where  the 
sheriff  sold  under  an  execution,  land  valued  at  1600  dollars  or  upwards 
for  351  dollars,  under  the  following  circumstances  :  viz.  the  debtor  had 
previously  paid  the  amount  supposed  to  be  due  to  the  sheriff,  and  pro- 
mised to  pay  the  residue  (if  any)  when  called  on.  There  was  a  bal- 
ance left  of  15  or  20  dollars ;  and  for  this  balance  the  sheritTsold  with- 
out calling  on  the  debtor :  but  the  court  observed  that  a  court  of  law 
could  not  interfere  on  motion  ;  but  relief  might  be  obtained  in  chancery 
for  such  an  abuse  of  power.  See  Tiernan  r.  Wilson,  6  J.  Ch.  411, 
where  it  was  held  that  the  sheriff  should  sell  only  so  much  of  the  de- 
fendant's property  as  might  be  sufficient  for  the  purpose,  provided  it  can 
be  sold  separately. 

Where  the  execution  is  issued  on  a  judgment  for  an  amount  exceed- 
ing the  ad  damnum  in  the  writ ;  and  the  levy  is  made  for  the  full 
amount ;  the  levy  is  void  in  respect  to  other  attaching  creditors ;  and 
also  in  respect  to  persons  claiming  title  by  intermediate  conveyance. 
And  it  seems  to  be  considered  that  there  can  be  no  apportionment  in 
such  case,  so  as  to  give  the  creditor  a  title  to  the  property  correspond- 


OF  THE  COURTS  OF  EQUITY.  gt 

A  person  having  a  legal  lien,  as  a  judgment-creditor 
not  coming  in  under  the  decree,  would  not  be  bound  by 
it,  and  might  proceed  against  the  purchaser,  unless  he 
obtained  a  legal  interest  over-reaching  the  lien ;  in  ^^  hich 
case  the  claim  being  merely  in  equity,  the  Court  would 
protect  the  purchaser  buying  under  its  decree(/>),  or 
rather  would  not  lend  its  aid  to  the  judgment-creditor 
against  liim(22). 

(  p)    Barrett  r.  Blake,  2  Ball  S.  Beat.  354. 


ing  in  value  to  his  attachment.  Chickering  v.  Lovejoy,  13  Mass.  66. 
If  the  judgment,  however,  be  for  a  penalty,  the  plaintiff  may  levy  his 
whole  debt  independent  of  the  charges  of  execution.  Per  Parsons,  C. 
J.  4  Mass.  411.  In  a  late  case,  it  was  held,  that  where  the  execution  was 
levied  upon  land  ;  and  the  appraisers  valued  the  land  14  cents  more 
than  the  amount  of  the  execution,  the  extent  was  not  invalid  for  this 
cause  ;  for  de  minimis  non  curat  lex.  Spencer  v.  Champion,  9  Conn. 
R.  453. 

In  Den  r.  Despcreaux,  9  Hals.  R.  182,  it  was  held,  that  where  the 
sheriff's  deed  misrecites  the  execution,  the  purchaser  will  fail  to  show 
the  authority  of  the  sheriff  to  sell.  So,  in  Den  v.  Whiight,  Pet.  66,  U. 
S.  C.  C,  the  court  held,  that  the  sheriQ^'s  deed  could  not  be  given  in 
evidence  without  producing  the  judgment  and  execution  ;  these  being 
necessary  to  show  the  authority  of  the  sheriff  ;  and  if  the  latter  differ 
from  the  former,  it  is  the  same  as  if  none  were  produced.  It  is  dif- 
ferent in  New-York  ;  the  statute  in  the  latter  state  not  requiring  the 
execution  to  bo  recited  in  the  deed.  9  Cowcn,  192;  S.  P.  10 
Johns.  331. 

(22)  In  the  late  case  of  The  Eagle  Fire  Ins.  Co.  r.  Cammet  ct  al.,  2 
Edw.  Ch.  R.  127,  the  V.  Ch.  discharged  a  purchaser  from  his  contract 
under  a  decree  of  foreclosure  of  a  mortgage,  on  the  ground,  that  the 
remainder  man,  who  had  the  first  estate  of  inheritance  had  not  been 
made  a  party.  The  widow  and  daughter  of  the  mortgagor  were  the  only 
parties  :  and  they  were  tenants  for  life  only  under  the  will  of  the  mort- 
gagor. This  was  not  sufficient.  In  Gore  r.  Stackpole,  1  Dow's  P. 
R.  18,  a  foreclosure,  in  a  similar  case,  was  opened  by  a  remainder 
man  fifty  years  afterwards.  It  was  done  upon  the  opinions  of  Lords 
Redesdale  and  Eldon. 

In  Foster  v.  Briggs,  3  Mass.  315,  where  the  plaintill"  ni;;de  an  at- 
tachment of  land,  which  was    under   an   inrnnibrnnce   to  its  full  value* 

vor..   I.  9 


66 


OF  SALES  UNDER  THE  AUTHORITY 


In  sales  by  auction  or  private  agreement,  the  contract 
is  complete  when  the  agreement  is  signed  ;  but  a  different 
rule  prevails  in  sales  before  a  Master  ;  the  purchaser  is 
not  considered  as  entitled  to  the  benefit  of  his  contract 
till  the  Master's  report  of  the  purchaser's  bidding  is 
absolutely  confirmed  ;  and  1  shall  now^  proceed  to  show' 
(*)what  steps  a  purchaser  must  take  to  obtain  an  abso- 
lute confirmation  of  the  Master's  report(23). 

The  purchaser  must  first,  at  his  own  expense,  procure 
a  report  from  the  Master,  of  his  being  the  best  bidder  for 
the  lot  he  has  purchased.  After  the  report  is  filed,  and 
an  office-copy  of  it  taken  by  the  purchaser,  he  must,  at 
his  own  expense,  apply  to  the  Court  by  motion,  of  which 
no  notice  need  be  given(^),  that  the  purchase  may  be 
confirmed.  Upon  this  application  the  order  will  be  con- 
firmed nisi(7'),  that  is,  unless  cause  be  shown  against  the 
same  in  eight  days  after  service.  The  purchaser  must, 
at  his  own  expense,  procure  an  office-copy  of  this  order 
from  the  Register(I).  If  no  cause  be  shown  within  the 
eight  days,  the  purchaser  must,  at  his  own  expense,  apply- 
to  the  Court  to  confirm  the  report  absolutely,  which  will 

(q)   See  Parker's  Analysis,  141. 

(r)   For  a  form  of  the  order,  see  2  Fowler's  Pract.  308. 

(I)  See  3  &  4  W.  4,  c.  94,  s.  10. 


Four  days  after  he  assisted  in  a  negotiation  by  which  the  incumbrance 
was  removed  ;  and  the  premises  sold  to  one  G.  under  whom  the  de- 
fendant claimed.  Parsons,  C.  J.  "  Whether  at  this  time  (the  time  of 
sale)  his  not  disclosing  his  attachment,  but  assisting  in  the  transaction 
was  such  a  fraud  upon  G.,  as  shall,  at  law,  defeat  his  attachment,  it  is 
not  necessary  now  to  decide,  as  the  justice  of  the  case  can  be  attained 
by  the  decision  of  another  question.  I  am  satisfied  that,  were  we  sit- 
ting here  as  a  court  of  Chancery,  with  all  the  equitable  powers  of  that 
court,  we  ought  to  set  aside  the  plaintiff's  attachment,  on  account  of  his 
fraudulent  concealment  of  it  disclosed  in  the  case." 

(23)   See  Monell  v.  Lawrence,  12  Johns.  Kep.  521.  contra. 

(*69) 


OF  THE  COURTS  OF  EQUITY.  g^ 

be  done  of  course(5),  ou  an  affidavit  of  the  service  of  the 
order(z'),  and  a  certificate  of  no  cause  having  been  shown. 
The  certificate  is  obtained  from  the  Register  by  applica- 
tion to  the  entering  clerk,  and  leaving  the  order  nisi  the 
day  before.  Notice  of  this  application  need  not  be 
given(M).  But  if  he  be  served  with  notice  of  a  motion  to 
open  the  biddings,  he  cannot  regularly  proceed  to  confirm 
his  report  absolutely  (.t). 

If  after  having  obtained  the  order  nisi,  the  purchaser 
neglects  to  confirm  the  order,  the  vendor  himself  may 
make  the  motion(//). 

The  bidder  not  being  considered  as  the  purchaser 
(*)until  the  report  is  confirmed,  is  not  liable  to  any  loss 
by  fire  or  otherwise  which  may  happen  to  the  estate  in 
the  interim(~)  ;  nor  is  he,  until  the  confirmation  of  the 
report,  compellable  to  complete  his  purchase(«) ;  but 
upon  the  report  being  confirmed,  he  will  be  compelled  to 
carry  the  contract  into  execution(6). 

If  the  purchaser  neglect  to  complete  his  purchase,  the 
practice  is,  to  confirm  the  report,  and  then  if  the  pmxhas- 
er  is  supposed  to  be  responsible,  to  get  an  order  to  inquire 
whether  the  party  can  make  out  a  good  title(c),  and  if  he 
can,  to  obtain  an  order  upon  the  purchaser  to  complete 


(s)   For  a  form  of  the  order,  see  2  Fowler's  Pract.  311. 

(/)  For  Ibrms  of  the  allidavit,  see  2  Turn.  Pract.  503.  522 ;   Parker'* 
Anal.  98;  2  Fowl.  Pract.  310. 

(«)    Sec   1  Turn.  Pract.  129. 

(x)   Vansittart  v.  Collier,  2  Sim.  &  Stu.  608. 

((/)  Chillingworth  v.  Chillingwoith,  1  Sim.  &  Slu.  291. 

(z)   Ex  parte  Minor,    11  Yes.  jun.  559;  see    13  Ves.  jun.   51S  ;   1 
Jac.  &  Walk.  639. 

(a)   Anon.  2  Ves".  jun.  335. 

(6)  Barker  r.  Holford,  and  Eggington  r.  Flavel,  2  Anstr.  344,  cited. 

(c)  Notice  must  be  given  of  the  motion  for  this  order.     For  a  form 
of  the  notice,  see  2  Turner,  650. 

(*60) 


68 


OF  SALES  UNDEPv  THE  Ar'l'HORlTY 


his  purchase(r/)(I)  ;  but  if  the  purchaser  is  unable  to 
complete  h.is  j)uichase,  then  on  the  report  being  confirm- 
ed, it  is  moved  to  disciiarge  him  from  the  bidding(e), 
and  notice  of  this  motion  must  be  given  to  the  purchas- 
erC/).  But  a  purciiaser  v.ill  not  be  permitted  to  baffle 
the  Court  ;  and  therefore,  instead  of  discharging  the 
purchaser  from  his  biddinji;,  the  Court  will,  if  required, 
make  an  order  that  he  shall,  within  a  given  time,  pay  the 
money,  or  stand  committed (^) (24). 

(d)  See  2  Fowl.  Pract.  318,  325. 

(e)  Cunningham  v.  Williams,  2  Anstr.  344. 

(/)   For  a  form  of  the  notice,  see  2  Turn.  Pract.  651. 
(g)    Lansdown  v.  t'llclerton,  14  Ves.  jun.  512. 

(I)  A  motion  was  made  before  Lord  Erskine,  that  the  purchase- 
money  should  he  paid  in  by  the  purchaser.  The  purchaser  did  not  ap- 
pear. After  consulting  the  Register,  who  had  searched  for  precedents, 
and  expressing  his  unwillingness  to  do  any  thing  to  prejudice  sales  by 
the  Court,  the  Chancellor  refused  the  motion,  but  ordered  the  title  to  be 
referred  to  the  Master;  and  then,  he  said,  if  a  good  title  could  be  made 
he  would  compel  payment  of  the  money  according  to  the  usual  practice. 
Anon.  Ch.  22d  July,  1806,  MS. 


(24)  A  purchaser  cannot  object  to  any  defect  of  title  at  a  sherifi''s 
sale,  of  which  he  had  notice.  Therefore,  where  lands  were  taken  in 
execution  ;  and  at  the  time  of  sale  by  the  sherift'one  H.  F.  gave  public 
notice  that  the  land  was  his,  and  not  the  execution  debtor's  :  held,  that 
the  vendee  could  not  avail  himself  of  such  defect  in  the  title  as  a  de- 
fence against  paying  the  purchase  money.  (Friedly  r.  Scheetz,  8  S. 
&  R.'26S.) 

Duncan,  J.  in  delivering  the  judgment  of  the  court  said  "  the  sheriti" 
conveys  to  the  purchaser  a  free  and  clear  estate,  as  fully  apd  amply,  as 
they  were  in  the  debtor.  He  enters  into  no  covenant.  Inadequacy 
of  price  alone  is  no  objection  to  a  sale  under  process  of  law.  11  Johns. 
55'.  The  rule  of  caveat  emptor  is  binding  on  every  purchaser  at  a 
sheriff's  sale.  Fraud,  a  clcnr  mistake  in  the  description  of  the  proper- 
ty, its  situati'on,  its  dimensions,  would  raise  a  different  question.  The 
learned  judge  added  in  conclusion  in  respect  to  a  resale  that,  "  the  court 
were  not  called  upon  to  give  an  opinion  ;"  but  said,  "here  the  resale 


OF  THE  COURTS  OF  EQUITY.  gC) 

(*)Whcn  the  report  is  absolutely  confirmed,  the  pur- 
chaser is  entitled  to  a  conveyance  on  payment  of  the 
purchase-money,  and  may,  after  giving  notice  of  his 
intention(/j),  ap])ly  to  the  Court  for  leave  to  pay  his 
purchase-money  into  the  Bank(?'),  and  to  be  let  into  i)os- 
session  of  the  estate  ;  but  this  application  should  of 
course  not  be  made  until  the  title  be  approved  of(/t"). 
When  the  money  is  paid  according  to  the  order,  the  pur- 
chaser must,  at  his  own  expense,  obtain  a  certificate  of 
the  payment  of  it. 

If  the  estate  be  subject  to  an  incumbrance,  which 
appears  upon  the  report,  the  purchaser  should,  after 
giving  notice  of  his  intention(/),  apply  to  the  Court  for 
leave  to  pay  off  the  charge,  and  to  pay  the  residue  of  the 
purchase-money  into  the  Bank.     But  where  an   incum- 

(/j)  For  forms  of  the  notice,  sec  2  Turn.  Pr.  647;   Park.  Anal.  140. 
(i)  For  the  mode  of  paying  the   money  into   the  Bank,  see  1    Turn. 
Pract.  210;  and  for  a  form  of  the  order,  see  2  Fowl.  Pract.  313. 
(/.)  See  2  Fowl.  Pract.  317. 
(/)  For  a  form  of  such  notice,  see  2  Turn.  Pract.  648. 


was  at  the  risk  of  the;  purchaser,  and  on  a  resale  made  by  a  sheriff  for 
the  purchaser's  non-compliance,  the  purchaser  would  not  be  entitled  to 
any  surplus,  though  he  would  be  accountable  for  any  deficiency." 
But  where  the  resale  is  on  account  of  the  purchaser,  it  is  different. 
The  case  of  AVebsteret  al.  r.  Iloban,  7  Cranch,  399,  was  an  action  on 
the  sale  itself;  and  the  condition  of  the  sale  was,  that  the  purchaser 
should  secure  the  purchase  money  within  30  days ;  and  in  default  of  so 
doing  the  property  was  to  be  resold  on  his  account.  The  court  held, 
that  the  purchaser  was  clearly  entitled  to  the  surplus.  In  respect  to 
the  case  first  cited,  it  may  be  observed  that,  "  if  the  defendant  had  not 
given  the  obligation,  the  sheriff  might  have  returned  the  property  to  tlie 
next  bidder,  sold  again,  and  have  sued  for  the  difference;  or  he  might 
have  made  a  special  return,  that  the  premises  were  knocked  down  to 
the  defendant,  and  that  he  not  having  paid  the  purchase  money,  there- 
fore the  premises  remained  unsold."  Tantinger  v.  Pole,  1  Uall.  458. 
Or,  he  might  as  he  did  in  that  case,  return  them  sold,  tender  the  convey- 
ance, and  sue  for  the  purchase-money  on  the  obligation. 

■(*61) 


70 


OF  SALES  UNDER  THE  AUTHORI'l'Y 


braiice  on  the  estate  does  not  appear  on  the  report,  and 
any  of  the  parties  refuse,  or  are  incompetent  to  consent, 
a  purchaser  cannot  apply  any  part  of  liis  purchase-money 
in  discharge  of  the  incumbrance,  though  perhaps,  if  the 
parties  be  all  competent  to  consent,  and  do  consent,  it 
may  be  done(m). 

Where  two  or  more  persons  purchase  one  lot,  the 
money  must  be  paid  altogether ;  the  Court  will  not  allow 
them  to  pay  their  proportions  separately,  on  account  of 
the  confusion  which  might  ensue(M). 

A  purchaser  under  a  decree  is  entitled  to  be  let  into 
possession  of  the  estate  from  the  quarter-day  preceding 
his  purchase,  paying  his  money  before  the  following 
(*)one(o).  But  this  rule  does  not  apply  to  a  colliery, 
which  is  considered  as  a  trade.  The  profits  are  settled 
monthly,  and  therefore  the  purchaser  is  entitled  to  the 
profits  only  from  the  commencement  of  the  month  in 
which  he  purchased,  paying  his  purchase-money  in  the 
course  of  that  month(p). 

If  a  life  interest  in  stock  be  sold,  the  purchaser  is 
entitled  to  the  dividend  which  becomes  due  after  the 
sale,  although  it  falls  due  the  very  day  d.her(q). 

A  purchaser  is  not  entitled  to  the  rents  for  a  period 
beyond  the  quarter-day  preceding  the  payment  of  his 
money,  merely  because  he  has  been  ready  to  complete 
his  purchase,  and  had  his  money  ready  lying  dead  in 
a  banker's  hands  ;  for  he  might  have  moved  to  pay  the 
money  into  Court,  when  it  would  have  been  laid    out  : 

(m)  V.  Stretton,  1  Ves.  jun.  266. 

(«)  Darkin  v.  Marye,  1  Anst.  22. 

(o)  Twigg  V.  Fifield,  13  Ves.  jun.  517  ;  see  Garrick  v.  Earl  Cam- 
den, 2  Cox,  231  ;  vide  post.  ch.  10. 

(p)  Wren  v.  Kirton,  8  Ves.  jim.  502  ;  Williams  v.  Attenborough,  1 
Turn.  70. 

(q)   Anson  v.  Towgood,  1  Jac.  &  Walk.  637. 

(*62) 


I 


OF  THE  COURTS  OF  EQUITY.  •y| 

and  this,  if  done  by  special  application,  would  not  have 
been  an  acceptance  of  the  title(r). 

If  a  purchaser  enter  into  possession,  he  will  be  com- 
pelled to  pay  the  money  into  Court,  although  he  entered 
with  the  permission  of  the  parties  in  the  cause.  The 
Court  only  can  give  such  permission(5). 

When  the  report  is  absolutely  confirmed,  and  every 
thing  arranged,  the  draft  of  the  conveyance  must  be 
drawn  by  the  purchaser's  solicitor,  and  either  settled  by 
the  Master,  if  the  parties  insist  upon  it,  or,  which  is 
more  customary,  by  a  conveyancing  counsel  of  whom  the 
Master  approves.  Sufficient  time  must  be  allowed  for 
copies  to  be  made  for  such  parties  in  the  cause  as  require 
(*)them,  and  then  warrants  must  be  taken  out  to  proceed 
on  the  draft.  The  Master's  clerk  will,  at  the  purchaser's 
expense,  ingross  the  deed,  procure  the  report  or  certificate 
of  its  being  allowed,  and  then  deliver  the  deeds  to  the 
purchasers  ;  and  it  is  usual  to  obtain  the  Master's  signa- 
ture to  every  skin.  The  report  must  be  filed,  and  an 
office-copy  of  it  taken (^). 

It  is  usual,  however,  to  so  word  decrees,  that  the  draft 
shall  not  go  before  the  Master  unless  the  parties  differ. 
Where  this  mode  is  adopted,  the  business  is  transacted 
in  the  same  way  as  upon  a  sale  by  private  contract,  un- 
less the  parties  cannot  agree,  in  which  case,  resort  is  had 
to  the  Master. 

When  the  deeds  have  been  properly  executed  by  all 
necessary  parties,  an  affidavit  of  the  due  execution  of 
them  must  be  made,  and  filed  in  the  affidavit  office,  and 
an  office-copy  of  the  affidavit  must  be  taken :  this  being 
done,  the  money  directed  to  be  paid  in  consequence 
thereof,  may  be  procured  in  the  usual  manner(M). 

(r)  Barker  v.  Harper,  Coop.  32, 

{«)  Anon.  L.  I.  Hall,  16  July  1S16,  MS. 

(0  1  Turn.  Pract.  145. 

(?0  1  Turn.  Prnct.  145. 

(*63) 


72  *^F  SALES  UNDER  THE  AUTHORITY 

If  the  parties  disngree  as  to  the  necessary  parties,  &:c. 
to  the  conveyance,  the  Master  Avill  report  his  approbation 
of  the  draft,  as  settled  by  him.  To  this  re])ort  exceptions 
may  be  taken(a"),  and  then  the  question  will  come  before 
the  Court  in  a  regular  way. 

So  if  the  parties  differ  as  to  the  validity  of  the  title 
to  the  estate,  the  Master  must  make  his  report  upon 
the  title,  to  which  exceptions  may  in  like  manner  be 
tc^ken(y). 

If  the  title  prove  bad,  the  purchaser  will  be  paid  the 
costs  of  the  reference  out  of  the  funds  in  the  cause(z)  ; 
(*)and  if  there  are  no  funds  in  Court,  the  plaintiff  will  in 
a  common  case  be  ordered  to  pay  the  purchaser  his  costs 
in  the  first  instance («). 

In  a  case  where  there  was  error  in  the  decree  under 
which  the  estate  was  sold,  the  purchaser  was  discharged, 
upon  motion,  from  his  purchase,  although  the  parties 
were  proceeding  to  rectify  it(6). 

If  a  purchaser  of  an  estate  under  a  decree  of  the  Court, 
after  the  absolute  confirmation  of  the  report,  and  before 
any  conveyance  made  to  him,  die,  having  devised  his 
interest  therein,  the  Court  will  order  a  conveyance  to  be 
made  to  the  devisees,  without  the  consent  of  the  testa- 
tor's heir  at  law,  where  he  is  an  infant(c). 

If  an  estate  directed  to  be  sold  before  a  Master,  is  sold 
by  private  contract,  or  in  any  other  manner  contrary  to 
the  order  of  the  Court,  and  not  actually  conveyed  to  the 
purchaser,  the  Court  will  not  take  notice  of  the  sale,  but 
will  direct  the  estate  to  be  sold  before  the  Master,  accord- 

(x)  Lloyd  V.   Griffith,  1   Dick.  103  ;  Tipping  v.   Gartside,  2   Fowl. 
Pract.  328  ;  Wakeinan  v.  Duchess  of  Rutland,  3  Ves.  jun.  504. 
(y)  For  forms  of  exceptions,  see  2  Tiirn.  Pract.  689. 
{z)  Reynolds  r.  Blake,  2  Sim,  &  Stu.  117. 
(a)  Smith  v.  Nelson,  2  Sim.  k  Stu.  657. 
(6)  Lechmere  v.  Brasier,  2  Jac.  &  Walk.  287. 
(c)  The  King  v.  Gregory,  4  Price,  380. 
(*64) 


J 


OF  THE  COURTS  OF  EQUITY.  «7« 

ing  to  the  decree(f/)(25).  And  a  person  who  has  notice 
of  the  decree  cannot  be  advised  to  purchase  the  estate 
unless  it  be  sold  before  the  Master(e)  :  and  the  money 
should  be  paid  into  court  and  not  to  the  partj(y*). 

If  an  estate  be  sold  contrary  to  the  order  of  the  Court, 
and  the  purchaser  had  notice  of  the  decree,  he  will  have 
no  remedy(26)  ;  but  if  he  bought  without  notice,  he  may 
recover  at  law  for  breach  of  the  agreement(^). 

A  sale  before  a  Master  is  not  within  the  statute  of 
frauds,  and  after  confirmation  of  the  Master's  report  of  the 
(*)best  purchaser,  the  sale  will  be  carried  into  effect  even 
against  the  representative  of  the  purchaser,  although  he 
did  not  subscribe ;  the  judgment  of  the  Court  taking  it 
out  of  the  statute(/i). 

And  even  if  the  authority  of  an  agent  not  being  ad- 
mitted cannot  be  proved,  yet  if  the  Master's  report  could 
be  confirmed,  the  sale  would  be  carried  into  execution 
unless  some  fraud  were  proved(i). 

As  a  purchaser  under  a  decree  does  by  the  act  of  pur- 
chase submit  himself  to  the  jurisdiction  of  the  Court,  he 
may,  if  he  obtain  possession  of  the  estate  before  the  con- 


(d)  Annesley  r.  Ashurst,  3  P.  Wms.  282.  See  and  consider  ex  pay- 
te  Hughes,  6  Ves.  jun.  617. 

(e)  See  2  vol.  Ca.  and  Opin.  224,  225. 
(/)  See  2  Scho.  &  Lef.  681. 

{g)  Raymond  r.  Webb,  LofR,  66  :  See  Morllock  v.  Buller,  10  Ves. 
jun.  314. 

{h)  Att.  Gen.r.  Day,  1  Ves.  218. 
(0  Ibid. 

(26)  Sales  of  mortgaged  lands,  under  a  decree,  must  be  made  by  a 
master,  or  under  his  immediate  direction.  A  sale  by  a  person  deputed 
for  the  purpose  by  a  master,  in  his  absence,  is  irregular,  and  will  be  set 
aside.     Heyerv.  Deaves,  2  Johns.  Ch.  Rep.  154. 

(26)  See  Quarles  v.  Lacy,  A  Munf.  261. 

VOL.   1.  10  (*65) 


74 


OF  SALES  UNDER  THE  AUTHORITY 


tract  is  completed,  be  restrained  by  injunction  from  com- 
mitting waste(y). 

SECTION  II. 
Of  opening  the  Biddings,  and  of  rescinding  the  Contract. 


Thus  far  we  have  traced  a  sale  before  a  Master  where 
no  opposition  is  made  to  the  absolute  confirmation  of  the 
Master's  report  of  the  best  bidder,  and  the  sale  is  regu- 
larly concluded.  But  where  estates  are  sold  before  a 
Master  under  the  decree  of  a  court  of  equity,  the  Court 
considers  itself  to  have  a  greater  power  over  the  contract 
than  it  would  have  were  the  contract  made  between  party 
and  party(A;)  ;  and  as  the  chief  aim  of  the  Court  is  to  ob- 
tain as  great  a  price  for  the  estate  as  can  possibly  be  got, 
it  is  in  the  habit  of  opening  the  biddings  after  the  estate 
is   sold(27).     It  seems  to   have  been  thought   that  the 

(j)   Cassamajor  v.  Strode,  1  Sim.  &  Stu.  381. 
(fc)  See  1  P.  Wms.  747. 


(27)  See  Fairfax  v.  Alust^s  Exrs.  4  Munf.  124.  Ford  v.  Hcrron, 
4  Munf.  316.      Wood's  Exr.  v.  Hudson,  5  Munf.  423. 

In  the  State  of  JVeto-  Yorh,  the  English  practice  of  opening  biddings 
at  a  master's  sale,  is  not  adopted  :  But  where  the  executors  of  a  mort- 
gagee were  innocently  misled,  and  induced  to  believe,  that  the  sale  of 
the  premises  would  not  take  place  on  the  day  appointed,  and  there  be- 
jng  no  culpable  negligence  on  their  part,  the  court,  under  the  special  cir- 
cumstances of  the  case,  set  aside  the  sale,  and  ordered  a  re-sale,  on 
condition  that  the  defendant  should  pay  the  purchaser  all  his  costs  and 
expenses,  and  the  costs  of  the  application,  though  the  sale  was  perfect- 
ly fair.  Williamson  v.  Dale,  3  Johns.  Ch.  Rep.  290.  See  Lansing  v. 
M'Pherson,  3  Johns.  Ch.  Rep.  424. 

(*66) 


OF  THE  COURTS  OF  EQUITY.  -ye 

(*)sanie  rule  may  be  extended  to  sales  under  a  commission 
of  bankruptcy (/).  This,  however,  never  has  been  done, 
nor  is  there  any  reason  to  apprehend  that  so  mischievous 
an  extension  of  the  rule  will  ever  take  place. 

Where  a  person  is  desirous  of  opening  a  bidding,  he 
must,  at  his  own  expense,  apply  to  the  Comt,  by  motion 
for  that  purpose,  stating  the  advance  offered.  Notice  of 
the  motion  must  be  given  to  the  person  reported  the  pur- 
chaser of  the  lot,  and  to  the  parties  in  the  cause(m).  If 
the  Court  approve  of  the  sum  offered,  the  application  will 
be  granted,  and  on  the  order  being  drawn  up,  entered 
and  served,  a  new  sale  must  be  had  before  the  Master. 
The  order  is  made  at  the  expense  of  the  person  opening 
the  biddings,  and  he  must  bear  the  expense  of  paying  in 
his  deposit,  and  pay  the  costs  of  the  first  purcliaser(?i), 
and  interest  at  the  rate  of  4/.  per  cent,  on  such  part  of  the 
purchase-money  as  the  Master  shall  find  to  have  lain 
dead(o). 

Mere  advance  of  price,  if  the  report  of  the  purchaser 
being  the  best  bidder  is  not  absolutely  confirmed,  is  suf- 
ficient to  open  the  biddings,  and  they  will  be  opened  more 
than  once,  even  on  the  application  of  the  same  person,  if 
a  sufficient  advance  be  offeredQ?)  ;  but  the  Court  will 
stipulate  for  the  price,  and  not  permit  the  biddings  to  be 
opened  upon  a  small  advance(</)  ;  and,  although  an  ad- 
vance of  10  per  cent,  used  generally  to  be  considered  sufti- 

(/)    Ex  parte  Partington,  1  Ball  &  Beatty,  209. 

(m)  For  a  form  of  the  notice,  see  2  Turn.  Pract.  649,  660. 

(n)  2  Fowl.  Pract.  318  ;   1  Turner's  Pract.  131. 

(o)  This  was  directed  on  opening  the  biddings  for  Gen.  Birch's  es- 
tate, MS. 

(p)  Scott  15.  Nisbitt,  3  Bro.  C.  C.  475;  Hodges  v.  Jones,  2  Fowl. 
Pract.  318;  see  Baillie  r.  Chaigneau,  6  Bro.  P.  C.  byToml.  313; 
Preston  v.  Barker,  15  Yes.  jun.  140. 

{q)  Anon.  1  Ves.  jun.  453  ;  Anon.  2  Yes.  jun.  487  ;  Upton  v. 
Lord  Ferrers,  4  Yes.  jun.  700  ;     and  Anon.  5  Yes.  jun.  148. 

(*66) 


76 


OF  SALES  UNDER  THE  AUTHORITY 


(*)cient  on  a  large  sum,  yet  no  such  rule  now  prevails(/)  ; 
but  in  the  case  of  a  sale  under  a  creditor's  suit,  the  Court 
permitted   the  biddings  to  be  opened,  upon  an  advance  of 

5  per  cent  on  10,000/.(5).  An  advance  of  350/.  upon 
5,300/.  was  refused,  and  it  was  said  that  the  former  cases 
only  established  that  where  an  advance  so  large  as  500/. 
is  offered  the  Court  will  act  upon  it,  though  it  be  less 
than  10  per  cent(^).  Biddings,  it  seems,  will  not  be 
opened  unless  40/.  at  least  be  offered  in  advance(w)  ; 
and  the  common  rule  does  not  apply  to  a  colliery(i(;). 

The  determinations  on  this  subject  assume  a  very  dif- 
ferent aspect  when  the  report  is  absolutely  confirmed. 
Biddings  are  in  general  not  to  be  opened  after  confiritia- 
tion  of  the  report(a') :  increase  of  price  alone  is  not  suf- 
ficient, however  large,  although  it  is  a  strong  auxiliary 
argument  where  there  are  other  grounds. 

In  a  case(?/),  however,  before  Lord  Rosslyn,  this  rule, 
although  so  frequently  acknowledged  and  acted  upon, 
was  not  attended  to,  but  biddings  were  opened  after  the 
report  was  absolutely  confirmed,  merely  on  an  advance  of 
price.     This  case  is  now  completely  overruled. 

But  very  particular  circumstances  may  perhaps  induce 

(r)  Andrews  v,  Emerson,  7  Ves.  jun.  4;  White  v.  Wilson,  14  Ves. 
jun.  151.     See  Anon.  3  Madd.  494.    - 

(s)  Brooks  V.  Snaith,  3  Ves.  &  Bea.  144. 

(/)  Garstone  v.  Edwards,  1  Sim.  &  Stu.  20  ;  Lefroy  v.  Lefroy,  2 
Rus3.  606. 

(u)  Farlow  v.  Weildon,  4  Madd.  460  ;   Brookfield  r.  Bradley,  1  Sim. 

6  Stu.  23. 

{iv)  Williams  v.  Attenborough,  1  Turn.  70. 

(x)  2  Ves.  jun.  63  ;  Scott  v.  Nisbitt,  3  Bro.  C.  C.  475  ;  Boyer  v. 
Blackwell,  3  Anstr.  656;  Prideaux  v.  Prideaux,  1  Bro.  C.  C.  287;  2 
Ves.  jun.  53  ;   1  Cox,  35. 

(y)  Chetham  v.  Grugeon,  5  Ves.  jun.  86  ;  and  see  his  Lordship's  de- 
cision in  Prideaux  v.  Prideaux,  ubi  sup.  when  Lord  Commissioner. 

(*67) 


OF  THE  COURTS  OF  EQUITY.  f^n 

the  Court  to  open  the  biddings  after  confirmation  of  the 
report,  if  the  advance  be  considerable(I). 

(*)Thus,  in  a  case(2:)  where  the  owner  of  the  estate  (who 
joined  in  a  motion  for  the  purpose  of  opening  biddings 
after  the  report  was  absolutely  confirmed)  was  in  prison 
at  the  time  of  the  confirmation,  and  it  appeared  that  he 
would  have  opened  the  biddings  before  confirmation  of 
the  report,  had  he  been  able,  and  had  even  directed  per- 
sons to  bid  more  than  what  the  estate  sold  for,  who  de- 
ceived him,  and  an  advance  of  4,000/.  (being  more  than 
one  fourth  of  the  original  purchase-money)  was  offered, 
the  biddings  were  opened  on  the  deposit  of  the  4,000/. 
being  made. 

Strong  as  the  circumstances  in  this  case  were.  Lord 
Eldon,  in  a  late  case,  expressed  great  disapprobation  of  the 
decision,  and  determined  generally,  that  after  a  purchaser 
has  confirmed  his  report,  unless  some  particular  principle 
arises  out  of  his  character,  as  connected  with  the  owner- 
ship of  the  estate,  or  some  trust  or  confidence,  or  his  own 
conduct  in  obtaining  his  report,  the  bidding  ought  not  to 
be  opened  («). 

And  Lord  Redesdale,  also,  in  a  case  before  him,  held 
that  biddings  could  not  be  opened  after  the  report  was 
absolutely  confirmed,  unless  on  the  ground  of  fraud  on 
the  part  of  the  purchaser.  And  he  considered  it  to  the 
advantage  of  suitors  to  observe  greater  strictness  in  open- 
ing biddings,  as  it  would  procure  better  sales(Z>). 

(2)  Watson  r.  Birch,  2  Yes.  jun.  51  ;  4  Bro.  C.  C.  172. 
(a)  Morice  v.  the  Bishop  of  Durham,  11  Ves.  jun.  57. 
(6)  Fergus  v.  Gore,  1  Schoales  &  liefroy,  350. 

(I)  In  Ireland,  a  sale  under  a  decree  was  actually  set  aside  after  the 
purchaser  \vas  put  in  possession,  and  the  conveyance  to  him  executed 
and  registered,  because  another  person  offered  200/.  more  than  the  pur- 
chaser had  paid.  Conran  r.  Barry,  Vern.  and  Scriv.  111.  See  £x 
parte  Partington,  1  Ball  and  Beatty,  209. 

(*68) 


78 


OF  SALES  UNDER  THE  AUTHORITY 


111  a  Still  later  case,  Lord  Eldon  adhered  to  the  same 
rule,  and  said  that  he  could  not  do  a  thing  more  mis- 
chievous to  the  suitors  than  to  relax  further  the  binding 
nature  of  contracts  in  the  Master's  office  :  half  the  estates 
(*)that  are  sold  in  the  Court  being  thrown  away  upon  the 
speculation  that  there  will  be  an  opportunity  of  purchasing 
them  afterwards  by  opening  the  biddings(c). 

Fraud  will,  of  course,  be  a  sufficient  ground  for  opening 
the  biddings.  Therefore,  if  the  parties  agree  not  to  bid 
against  each  othev(d),  or  a  survey  be  made  of  an  estate 
with  some  degree  of  collusion  with  the  tenants(e),  and 
it  misrepresents  the  value  and  quality  of  the  estate,  and 
some  of  the  purchasers  are  aware  of  this  fraud  in  making 
the  survey,  and  the  owner  is  ignorant  of  it ;  or  the  pur- 
chaser of  the  estate  be  partner  with  the  solicitor  of  the 
cause,  and  is  in  possession  of  some  particular  knowledge 
to  the  benefit  of  which  the  other  parties  were  entitled^/}; 
in  all  these  cases  the  Court  would  open  the  biddings, 
although  the  report  had  been  absolutely  confirmed. 

Where  the  biddings  are  opened,  the  advance  is  ordered 
to  be  deposited  immediately(^),  and  the  costs  of  the 
purchaser  to  be  paid  by  the  persons  opening  the  bid- 
dings(/i)  ;  but  the  Court  will  not  direct  the  Master  to 
allow  a  specific  expense(i). 

If  the  biddings  are  opened,  the  estate  may  be  allotted 
for  sale  in  a  different  manner  to  what  it  at  first  was(J). 

(c)  "VThite  v.  Wilson,  14  Ves.  jun.  151. 

(d)  See  2  Vcs.  jun.  52. 

(e)  Ryder  v.  Gower,  6  Bro.  P.  C.  148  ;  and  see  2  Ves.  jun.  53. 
(/)  Price  V.  Moxon,  July  14,  1764,  before  Lord  Hardwicke.     See 

6  Bro.  P.  C.  155 ;  2  Ves.  jun.  54. 

{g)  Anon.  6  Ves.  jun.  613. 

(h)  See  Watts  V.  Martin,  4  Bro.  C.  C.  113;  and  see  ibid.  178; 
Upton  V.  Lord  Ferrers,  4  Ves.  jun.  700. 

(i)  Annon.  1  Ves.  jun.  286. 

(/)  Watts  r.  Martin,  4  Bro.  C.  C.  113. 

(*69) 


OF  THE  COURTS  OF  EQUITY.  >vq 

As  the  biddings  are  opened  for  the  benefit  of  the  suitor, 
no  other  person  will  be  favored  in  that  respect. 

Thus,  upon  a  motion  to  open  a  bidding  of  5,020/. (^) 
upon  the  ground  of  mistake  as  to  the  time  of  sale,  and  an 
over-bidding  of  150/.  ;  the  Lord  Chancellor  refused  it, 
(*)saying,  he  would  not  open  it  for  a  less  sum  than  500/. 
and  that  the  circumstance  that  the  bidder  was  too  late 
was  no  ground  at  all. 

The  person  who  is  desirous  of  opening  the  biddings 
having  been  present  at  the  sale,  is  no  objection  to  their 
being  opened,  although  a  greater  advance  may,  on  that  ac- 
count, be  required (/).  Nor  is  it  material  that  the  appli- 
cant is  entitled  to  a  part  of  the  produce  of  the  estates(m). 

A  man  opening  the  biddings  on  behalf  of  a  person 
not  in  existence,  will  himself  be  decreed  to  be  the  pur- 
chaser(?i). 

Where  a  person  is  permitted  to  open  the  biddings  upon 
the  usual  terms,  paying  the  costs,  and  making  a  deposit, 
and  the  -estate  is  bought  by  another  person,  the  person 
opening  the  biddings  is  entitled  to  take  back  his  deposit ; 
but  he  is  not  entitled  to  an  allowance  for  his  costs,  as  they 
are  in  the  nature  of  a  premium  paid  by  him  for  the  oppor- 
tunity of  bidding(o). 

Under  special  circumstances,  however,  they  might  be 
allowed.     If  a  person  come  forward  for  the  benefit  of  the 

(k)   Anon.  1  Ves.  jun.  453. 

{I)  Rigby  r.  M'Namara,  6  Ves.  jun.  117.  See  Tait  v.  Lord  North- 
wick,  5  Ves.  jun.  655 ;  see  15  Ves.  jun.  14  ;  and  see  M'Cullock  v. 
Cotbach,  3  Madd.  314,  where  the  Vice-Chancellor  ruled  contra;  but 
the  rule  is  established  by  Thornhill  v.  Thornhill,  2  Jac.  &  Walk.  347 ; 
Pearson  r.  Pearson,  13  Price,  213;  Tyndale  r.  Warre,  1  Jac.  525; 
Lefroy  v.  Lefroy,  2  Russ.  606. 

(m)  Hooper  v.  Goodwin,  Coop.  95. 

(n)  Molesworth  v.  Opie,  1  Dick.  289. 

(o)  Rigby  V.  M'Namara,  6  Ves.  jun.  466  ;  I^arl  of  Macclesfield  v. 
Blake,  8  Ves.  jun.  214  ;  Trefusis  v.  Clinton,  1  Yes.  &  Beam.  361. 

(*70) 


go  OF  SALES  UNDER  THE  AUTHORITY 

family,  and  the  estate  at  the  first  sale  was  knocked  down 
by  mistake,  or  sold  at  a  great  under-value,  he  will  be 
allowed  his  expenses(jt?). 

It  seems,  that  if  a  person  purchase  several  lots  of  an 
(*)estate,  and  the  biddings  are  opened  as  to  one,  he  shall 
have  an  option  to  open  them  all(^). 

In  two  late  cases  the  distinction  was  taken  that  where 
the  lots,  the  biddings  for  which  are  sought  to  be  opened, 
were  purchased  before  the  other  lots  bought  by  the  same 
purchaser,  he  is  entitled  to  have  the  biddings  opened  as 
to  all  the  lots(r). 


If  a  purchase  be  rescinded,  and  the  purchaser  has 
paid  his  money  into  court,  and  it  has  been  laid  out 
upon  his  application,  he  is  to  take  back  the  stock,  whether 
the  funds  have  fallen  or  risen  since  the  investment(5). 

The  authority  which  the  Court  has  over  these  contracts 
enables  it  in  a  proper  case  to  relieve  the  purchaser  as 
well  as  the  suitor. 

Therefore,  where  the  contract  is  inequitable,  the  pur- 
chaser, on  submitting  to  forfeit  his  deposit,  will  be  dis- 
charged from  his  purchase(/).  Where,  however,  the  con- 
tract is  not  inequitable,  a  purchaser  must  proceed  in  his 
purchase,  and  will  not  be  permitted  to  forfeit  his  deposit, 
and  abandon  the  contract,  however  disadvantageous  it 
may  be. 

Thus,  on  an  application  to  the  Court  by  the  persons 
who  opened  the  biddings  for  General  Birch's  estate(M)j 
to  forfeit  their  deposit,  which  was  resisted  by  the  creditors 

(2?)  Earl  of  Macclesfield  v.  Blake,  tibi  sup.  ;  Owen  r.  Foulks,  9 
Ves.  jun.  348;  West  v.  Vincent,  12  Ves.  jun.  6. 

(q)   See  2  Anstr.  657  ;  ex  parte  Tiisley,  4  Madd.  227.  n. 

(r)   Price  v.  Price,  1  Sim.  &  Stii.  386. 

(s)  Hodder  v.  Ruffin,  V.  C,  21  Mar.  1826,  MS. 

(0  Savile  v.  Savile,  1  P.  Wms.  746. 

(tt)  MS. ;  and  see  Sewell  v.  Johnson,  Bumb.  76. 

(*71) 


OF  THE  COURTS  OF  EQUITY.  g| 

for  whose  benefit  the  estate  was  sold ;  the  Court  held 
the  purchasers  to  their  bargain,  and  would  not  permit 
them  to  rescind  the  contract,  although  they  had  given 
a  price  which  was  considered  much  beyond  the  value  of 
the  estate. 

(*)But  where  the  purchaser  has  by  mistake  given  an  un- 
reasonable price  for  the  estate,  the  Court  will  in  a  proper 
case  wholly  rescind  the  contract. 

This  equity  w^as  enforced  in  the  case  of  Morshead  v. 
Frederick(z(;),  where  it  appeared  that  Smiths,  the  bankers, 
were  tenants  in  possession  of  the  house  in  question,  for 
which  they  paid  two  rents,  one  a  ground  rent  of  56/.  to 
the  defendant,  and  the  other  an  improved  rent  of  210/. 
to  a  third  person.  The  house  was  directed  to  be  sold, 
under  a  decree ;  and  the  plaintiffs,  by  a  broker,  treated 
for  the  purchase  of  it,  and  employed  him  to  value  it. 
The  broker  had  an  interview  with  the  attorney  concerned 
in  the  sale,  who  stated,  that  the  rent  payable  for  the 
house  was  the  6QI.  and  the  broker  valued  the  estate  ac- 
cordingly. A  W'ritten  agreement  was  not  entered  into, 
but  the  contract  was  approved  of  by  the  Master,  and  the 
money  paid  into  the  Bank.  The  purchasers  then  moved 
the  Court  to  rescind  the  contract,  on  the  ground  of  mis- 
take, and  the  broker  proved  that  the  purchasers  had  not 
informed  him  of  the  rent  of  210/.  ;  and  that  he  was 
ignorant  of  the  existence  of  it  at  the  time  he  made  his 
valuation :  and  the  Court  ordered  the  purchase-money  to 
be  repaid,  and  rescinded  the  contract.  This,  however, 
may  lie  considered  a  strong  case.  It  might  be  argued 
that  the  purchasers'  only  equity  was  their  own  negligence. 

Although  the  solicitor  in  the  cause  buy  in  an  estate 
merely  to  prevent  a  sale  at  an  undervalue,  yet  if  he  act 
without  authority  he  will   not    be  discharged    from    his 

{w)  Ch.  20  Feb.  1806,  MS.  App.  No.  10. 

VOL.  I.  11  (*72) 


g2  OF  SALES  UNDER  THE  AETTIIORITY 

purchase.  Lord  Eldon  has  said,  that  it  would  be  a  rery 
wholesome  rule  to  lay  down,  that  the  solicitor  in  the  cause 
should  have  nothing  to  do  with  the  sale ;  as  the  certain 
(*)effect  of  a  bidding  by  the  solicitor  in  the  cause  is  that 
the  sale  is  immediately  chilled (.t). 

The  same  rule  has  been  applied  to  assignees  of  a 
bankrupt,  who,  without  authority,  bought  in  an  estate  or- 
dered to  be  sold  by  the  Court  upon  a  petition  of  a 
mortgagee(?/). 

It  may  be  observ^ed,  in  this  place,  that  if  a  bankrupt's 
estate  be  sold,  and  the  purchaser  j)ay  a  deposit,  and  then 
the  commission  is  superseded,  the  Lord  Chancellor  will, 
upon  petition,  order  the  deposit  to  be  returned,  without 
driving  the  purchaser  to  file  a  bill(2:). 

Where  a  person  bought  under  the  decree  for  another 
who  died  without  having  adopted  the  contract,  although 
an  order  nisi  to  confirm  the  purchase  in  his  name  had 
been  obtained,  the  Court  refused  to  order  the  executors 
of  the  purchaser  to  pay  the  purchase-money,  and  the 
heir  declining  the  purchase,  the  order  nisi  was  set  aside, 
and  a  re-sale  ordered,  and  the  consideration  as  to  any 
deficiency  that  might  arise  on  the  re-sale,  and  by  whom 
the  costs  of  it  were  to  be  repaid,  were  reserved  ;  it  was 
held  that  the  executors,  in  a  purchase  by  their  testator 
from  the  Court,  would  not  be  compelled  by  the  heir  to 
pay  for  the  estate  without  filing  a  bill(f/). 

If  an  extended  estate  be  sold  under  the  25  Geo.  3, 
c.  35,  and  the  sale  be  confirmed  by  the  Remembrancer's 
report,  and  the  usual  orders,  yet  where  a  good  title  can- 
not  be  made,   the  court   of   Exchequer  will,   upon  the 

(x)   Nelthorpe  v.  Pennyman,  14  Ves.  jun.  517. 

(y)  Ex  parte  Tomkins,  Ch.  23cl  Aug.  1816,  MS.  App.  No.  12. 

(2)  Ex  parte  Fector,  1  Buck,  428. 

(a)  Lord  v.  Lord,  1  Sim.  503. 

(*73) 


OF  THE  COURTS  OF  EQUITY.  g3 

motion  of  the  Crown,  discharge  the  purchaser  without 
payment  to  him  of  any  costs  incurred  in  investigating  the 
title,  or  in  procuring  the  reports(6)(28). 

(b)  Rex  V.  Cracroft,  1  M'Clel.  &  You.  460. 

(28)  The  case  of  Lawrence  v.  Monell,  12  Johns.  621.  was  thus  : 
The  respondent  Lawrence  holding  a  mortgage  against  one  Sackett ; 
and  the  defendant  Monell  having  two  judgments  against  Sackett ;  and 
the  defendant,  Wood,  having  a  deed  of  the  mortgaged  premises,  from 
Sackett,  in  trust  for  all  h\s  creditors,  the  respondent  filed  his  bill  to  fore- 
close the  mortgage  ;  upon  which  the  parties  entered  into  an  agreement 
that  the  premises  should  be  sold  under  the  direction  of  a  master  in 
Chancery,  and  the  proceeds  paid  into  court ;  out  of  which  Lawrence 
was  to  be  paid  ;  and  the  rights  of  M.  W.  &  S.  preserved  respectively. 
A  decree  was  made  pursuant  to  this  agreement ;  and  the  master  adver- 
tised the  sale.  Before  the  sale,  the  interest  of  Sackett  was  sold  under 
an  execution  in  favor  of  one  G.  ;  but  of  the  judgment  on  which  it  issued 
Monell  had  become  the  owner  ;  and  became  the  purchaser  at  the 
Sheriff's  sale.  The  object  of  Monell  in  this  was  to  overreach  the  deed 
to  Wood  in  trust ;  because  G.'s  judgment  was  prior  to  the  latter  deed  ; 
but  the  latter  deed  was  prior  to  Monell's  last  judgment.  Monell  then 
paid  Lawrence  his  mortgage  merely  taking  a  receipt.  "  Received  from 
Mr.  Geo.  Monell  one  of  the  defendants  in  this  cause,  3,932  &  90." 
This  payment  was  considered  by  the  solicitor  of  the  mortgagee  only  as 
a  dcposite  until  the  sale  by  the  master  had  been  made  :  for  so  indeed 
the  solicitor  of  the  mortgagee  testified.  Monell  then  applied  to  dis- 
miss the  bill  under  which  a  sale  had  been  ordered,  but  this  being  de- 
nied, the  sale  by  the  master  took  place,  the  sale  confirmed  :  held,  that 
a  sale  by  an  officer  of  the  coiirt,  will  not  be  set  aside  ;  but  the  rights  of 
bona  jidt  purchasers,  under  such  sale,  will  be  protected.  Yeates,  J. 
said  that  "  The  English  rule,  requiring  a  confirmation  of  the  master's 
report  was  not  applicable  here.  In  England,  proceedings  arc  different : 
the  master  opens  a  book  for  biddings,  and  all  remains  in  an  un- 
finished state,  and  under  the  perfect  control  of  the  court,  until  the 
report  of  sales  is  confirmed.  The  master,  there,  has  no  authori- 
ty to  execute  a  conveyance  ;  that  is  done  by  the  parties  in  inter- 
est only  ;  and  until  a  confirmation  of  his  report ;  the  whole  of  the  busi- 
ness, in  relation  to  the  biddings  transacted  before  him,  continues  open 
for  the  exercise  of  the  discretion  of  the  court.  Here,  the  confirmation 
of  the  master's  report,  before  the  deeds  arc  executed,  is  not  essential  ; 
it  has  been  rendered  unnecessary  by  the  statute,  in  giving  the  master 


84 


OF  SALES  UNDER  THE  AUTHORITY,  &c. 


authority  to  convey  to  the  purchasers.  The  confirmation  of  the  report, 
if  the  sale  has  been  fairly  conducted,  is  of  course.  And  Thompson,  J. 
added  in  conclusion,  "  There  has  been  no  suggestion  that  the  decree 
by  consent  was  obtained  by  fraud  or  imposition,  or  that  the  mortgaged 
premises  were  not  sold  for  their  full  value  ;  and  he  (Monell)  is  now 
seekin<T  to  set  aside  this  sale,  made  pursuant  to  his  own  agreement, 
for  the  purpose  of  vesting  in  himself,  solely,  the  title,  and  to  prevent  the 
equitable  distribution  of  the  surplus  among  the  creditors  of  Sackett 
The  order  of  the  Chancellor  therefore,  was  affirmed  ;  but  Spencer,  J. 
and  10  senators  voted  for  reversing. 


I 


[  85] 


DCHAPTER  III. 


OF    PAROL    AGREEMENTS    AND    PAROL    EVIDENCE. 


With  a  view  to  prevent  many  fraudulent  practices 
which  were  commonly  endeavored  to  be  upheld  by  per- 
jury, it  was  enacted  by  the  29  Car.  II.  c.  3,  usually  called 
the  statute  of  frauds,  that(«)  "  all  leases,  estates,  interests 
of  freeholds,  or  terms  of  years,  or  any  uncertain  interest 
of,  in,  or  out  of  any  messuages,  manors,  lands,  tenements 
or  hereditaments,  made  and  created  by  livery  and  seisin 
only,  or  by  parol,  and  not  put  in  writing  by  the  parties 
so  making  or  creating  the  same,  or  their  agents  thereunto 
lawfully  authorized  by  writing,  shall  have  the  effect  of 
leases  or  estates  at  will,  any  consideration  for  making  any 
such  parol  leases  or  estates  notwithstanding."  But,  ne- 
vertheless, leases  not  exceeding  three  years,  whereupon 
the  reserved  rent  should  amount  to  two  thirds  of  the  full 
improved  value,  were  excepted(6).  The  Act  then  re- 
quires the  assignment,  grant,  and  surrender  of  existing 
interests  to  be  made  by  writing(c)  ;  and  then(f?)  enacts 
that  "  no  action  shall  be  brought,  whereby  to  charge  any 
person  upon  any  agreement  made  upon  any  contract,  or 
sale  of  lands,  tenements,  or  hereditaments,  or  any  interest 

(o)  Sect.  I.  (c)  Sect.  3. 

(6)  Sect.  2.  (d)  Sect.  4. 

C*74) 


86 


OF  PAROL  AGREEMENTS. 


in  or  concerning  them(I)(29),  unless  the  agreement,  upon 
(*) which  such  action  shall  be  brought,  or  some  memoran- 
dum or  note  thereof  shall  be  in  writing,  and  signed  by 
the  party  to  be  charged  therewith,  or  some  other  person 
thereunto  by  him  lawfully  authorized." 

In  treating  of  these  legislative  provisions,  we  may 
consider — 1.  What  interests  are  within  the  statute: — 
2.  What  is  a  sufficient  agreement : — 3.  What  agreements 
will  be  enforced,  although  by  parol ; — and  4.  In  what 
cases  parol  evidence  is  admissible  to  vary  or  annul  writ- 
ten instruments. 

(I)  "  Or  upon  any  agreement  not  to  be  performed  within  a  year ;" 
which  clause  does  not  extend  to  any  agreement  concerning  lands. 
Hollis  V.  Edwards,  1  Vern.  159.  It  is  quite  clear,  that  an  agreement 
for  sale  of  lands  must  be  in  writing,  although  the  contract  is  to  be 
performed  the  next  day.  See  Bracebridge  v.  Heald,  1  Barn,  and  Aid. 
722. 

(29)  MEMORANDUM.  In  most  of  the  United  States,  provisions 
by  statute,  for  the  prevention  of  frauds  and  perjuries,  have  been  found 
necessary.  The  English  Statute  of  29  Car.  2.  c.  3.  has  been  the  guide 
to  legislative  enactment  s  on  this  subject.  In  some  of  the  states,  this 
act  has  been  adopted,  almost  verbatim  ;  in  others,  similar  provisions, 
though  with  some  modification,  have  been  enacted.  The  want  of  uni- 
formity of  legislation,  in  the  different  states,  has  given  rise  to  a  corres- 
ponding diversity  of  judicial  opinions.  For  a  similar  reason,  the  Amer- 
ican  decisions,  on  certain  points,  are  not  always  in  unison  with  those  of 
Westminster  Hall :  But  wherever  the  provisions  of  the  English  statute 
have  been  re-enacted,  the  construction  given  them  by  the  English  courts, 
has,  generally,  been  adopted  by  our  own.  [^Doivney  v.  Hoichkiss,  2 
Day,  225.]  The  Jlmerican  decisions  referred  to  in  this  edition  of  Mr. 
Sugden's  Treatise,  either  in  support,  or  contradiction  of  the  principles 
laid  down  by  him,  are  to  be  understood  as  having  reference  to  the  legis- 
lative acts  of  the  states,  respectively,  where  such  decisions  were  pro- 
nounced. 

(*75) 


i 


OF  PAROL  AGREEMENTS. 


87 


SECTION  I. 

Of  the  Interests  tvhich  are  ivithin  the  Statute. 


It  was  observed  in  the  case  of  Crosby  v,  Wadsworth(e), 
that  collecting  the  meaning  of  the  first  section  by  aid  de- 
rived from  the  language  and  terms  of  the  second  section, 
and  the  exception  therein  contained,  the  leases,  &c.  meant 
to  be  vacated  by  the  first  section,  must  be  understood  as 
leases  of  the  like  kind  with  those  in  the  second  section, 
but  which  conveyed  a  larger  interest  to  the  party  than 
for  a  term  of  three  years,  and  such,  also,  as  were  made 
under  a  rent  reserved  thereupon ;  and  the  Court  therefore 
determined  that  a  sale  of  a  standing  crop  of  mowing 
grass,  then  growing,  was  not  within  the  first  section  of  the 
statute,  because  neither  of  the  foregoing  circumstances 
were  to  be  found  in  the  agreement,  although,  as  the 
agreement  conferred  an  exclusive  right  to  the  vesture  of 
the  land  during  a  limited  time,  and  for  given  purposes,  it 
was,  the  Court  held,  a  contract  or  sale  of  an  interest  in, 
or  at  least  an  interest  concerning  lands. 

It  was  not,  however,  necessary  in  the  above  case,  to 
(*)decide  upon  the  precise  construction  of  the  first  section, 
which  seems  in  this  respect  to  be  co-extensive  with  the 
fourth,  and,  consequently,  every  interest  which  is  within 
the  fourth  section  is  equally  within  the  first,  unless  it 
come  within  the  saving  of  the  second  section.  The  first 
and  second  sections  appear  to  enact,  that  all  interests 
actually  created  without  writing  shall  be  void,  unless  in 
the  case  of  a  lease  not  exceeding  three  years,  at  nearly 
rack-rent,  which  exception  must  have    been  introduced 

(e)  6  East,  610. 

(*76) 


88  '    -^^  ^^  PAROL  AGREEMENTS. 

for  the  convenience  of  mankind,  and  under  an  impression 
that  such  an  interest  would  not  be  a  sufficient  temptation 
to  induce  men  to  commit  perjury.  Perhaps,  therefore, 
the  first  section  ought  to  extend  to  every  possible  interest 
which  is  not  within  the  exception  in  the  second  clause. 
If  an  estate,  of  whatever  value,  should  be  conveyed  to 
a  purchaser  by  livery  of  seisin,  without  writing,  the  act 
would  avoid  the  estate,  although  the  purchaser  had  paid 
his  money.  An  actual  lease  for  any  given  number  of 
years,  whether  with  or  without  rent,  or  any  interest  un- 
certain in  point  of  duration,  must,  it  should  seem,  equally 
fall  within  the  provision  of  the  first  section,  and  cannot 
be  sustained  unless  it  come  within  the  saving  in  the  sec- 
ond section. 

This,  however,  of  itself  would  not  have  prevented  all 
the  evils  which  the  act  intended  to  avoid ;  for  although 
actual  estates  could  not  be  created,  yet  still  parol  agree- 
ments might  have  been  entered  into  respecting  the  future 
creation  of  them.  To  remedy  this  mischief,  the  provision 
in  the  fourth  section  was  inserted,  which,  it  is  conceived, 
relates  not  to  contracts  or  sales  of  lands,  fee.  but  to  any 
agreement  made  upon  any  contract  or  sale  of  lands,  &c.(I), 

(I)  This  appears  to  be  the  true  meanhig  of  the  statute,  although  this 
branch  of  the  fourth  section  has  been  sometimes  read  as  a  distinct 
clause,  in  which  case  the  word  agreement  is  dropped,  and  the  clause 
runs  thus,  "  no  action  to  be  brought  upon  any  contract  or  sale  of 
lands,"  &c.  See  Anon.  1  Ventr.  361,  and  6  East,  611  ;  but  this  clause 
seems  to  be  governed  by  the  preceding  one  in  the  same  section,  as  to 
agreements  made  upon  consideration  of  marriage.  The  statute  says, 
no  action  to  be  brought,  "  to  charge  any  person  upon  any  agreement 
made  upon  any  consideration  of  marriage,  or  upon  [any  agreement 
made  upon]  any  contract  or  sale  of  lands,"  &c.  The  words  between 
crotchets  must,  it  is  submitted,  be  implied.  At  the  same  time,  there 
is  certainly  ground  to  contend,  that  the  clause  would  have  the  same 
operation  if  not  governed  by  the  words  in  the  preceding  clause. 

The  statute  seems  to  have  been  strangely  misunderstood  in  the  case 
of  Charlewood  v.  Duke  of  Bedford,   1  Atk.  497,  the  report  of  which 


OF  PAROL  AGREEMENTS.  OQ 

(*)and  as  agreements  were  more  to  be  dreaded  than  con- 
tracts actually  executed,  no  exception  was  inserted  after 
(*)the  fourth  section,  similar  to  that  which  follows  the  first 
section,  and  consequently  an  agreement  by  parol,  to  create 
even  such  an  interest  as  is  excepted  in  the  second  sec- 
tion, would  be  merely  void. 

If  this  be  the  true  construction  of  the  Act  it  answers 
the  purposes  for  which  it  was  passed,  and  the  question  in 
all  cases  must  be — Is  the  interest  in  dispute  actually  cre- 
ated by  the  parties,  or  does  the  contract  rest  in  fieri?  If 
it  be  actually  created,  it  is  avoided  by  the  first  section, 

agrees  with  the  Registrar's  book.  The  object  of  the  bill  was  to  com- 
pel the  performance  in  specie  of  a  parol  agreement,  by  the  Duke's 
steward,  to  grant  a  lease.  The  case,  therefore,  fell  within  the  fourth 
section,  but  the  defendant  pleaded  the  first,  and  to  bring  his  case 
within  it,  stated  the  words  of  the  statute,  at  the  close  of  that  section, 
to  be  "  any  contract  for  making  such  lease,  or  any  former  law  to  the 
contrary  notwithstanding."  The  words  really  are  "  any  consideration, 
&c."  The  framer  of  the  plea  must  have  adopted  an  error  which  has 
been  sometimes  entertained,  that  the  first  section  relates  to  leases,  and 
the  fourth  to  sales,  and  this  notion  compelled  him  to  alter  the  statute  in 
the  way  he  did,  for  he  could  not  otherwise  have  brought  his  case 
within  it.  It  is  observable  that  Lord  C.  B.  Comyns,  before  whom  the 
cause  was  heard,  did  not  notice  the  mistake. 

Lord  Keeper  North  seems  to  have  entertained  the  erroneous  opinion 
above  noticed  ;  for,  in  a  case  which  came  before  him  on  a  parol  agree- 
ment for  a  lease,  he  said  that  the  difficulty  that  arose  upon  the  act  was 
that  it  makes  void  the  estate,  but  does  not  say  the  agreement  itself  shall 
be  void,  and  therefore,  though  the  estate  itself  is  void,  yet,  possibly, 
the  agreement  may  subsist,  so  that  a  man  may  recover  dam.ages  at  law 
for  the  non-performance  of  it ;  and  if  so,  he  should  not  doubt  to  de- 
cree it  in  equity  ;  and  he  actually  sent  the  parties  to  law,  in  order  to 
have  the  point  decided,  and  for  that  purpose  directed  the  defendant  to 
admit  the  agreement.  Hollis  v.  Edwards,  1  Vern.  169.  The  plaintift' 
was  of  course  nonsuited  in  the  action,  and  thereupon  Lord  North  dis- 
missed the  bill.  His  impression  before  the  trial  must,  it  should  seem, 
have  been  that  the  first  section  related  to  leases,  and  the  fourth  only 
to  sales ;  or  at  least  he  must  have  thought  that  the  fourth  did  not  em- 
brace agreemcjits  for  leases. 

VOL.  I.  12  (*77)    (*78) 


9Q  OF  PAROL  AGREEMENTS. 

unless  saved  by  the  second.  If  it  be  not  actually  created, 
the  agreement  cannot  be  enforced  by  reason  of  the  fourth 
section,  whatever  be  the  nature  of  it.  But  if  the  first  sec- 
tion were  to  be  restrained  beyond  the  express  provisions 
of  the  second  section,  then,  although  every  parol  agree- 
ment for  any  interest  in  lands  would  be  void,  yet  many 
estates  might  still  be  actually  raised  by  parol.  The  first 
section,  however,  seems  to  embrace  interests  of  every  de- 
scription, whilst  the  exception  relates  only  to  leases  of  a 
particular  description.  One  consequence  of  qualifying 
all  the  interests  specified  in  the  first  section,  in  the  manner 
proposed  by  the  aid  derived  from  the  second  section, 
would  be,  that  an  estate  in  fee  might  still,  as  formerly, 
be  conveyed  by  livery  of  seisin  without  writing.  But  if 
the  doctrine  should  even  be  confined  to  leases,  yet  it 
would  open  a  considerable  door  to  perjury.  If  the  two 
requisites  are  to  concur  to  bring  a  lease  within  the  first 
section,  namely,  a  larger  interest  than  that  mentioned  in 
the  second  section,  and  a  reserved  rent,  then  it  should 
seem  that  a  lease  by  parol  for  a  thousand  years  without 
rent  would  be  valid,  notwithstanding  the  statute.  If  even 
one  only  of  these  requisites  be  essential,  yet  cases  of  im- 
portance may  be  taken  out  of  the  Act ;  an  estate,  however 
valuable,  may  be  claimed  under  a  parol  lease  for  any  term 
short  of  three  years  without  rent.  This  is  the  temptation 
to  perjury  which  the  statute  intended  to  remove.  And 
(*)this  mischief  must  necessarily  follow,  that  if  the  parties 
swear  to  an  agreement  for  such  an  interest  it  will  be  within 
the  statute ;  whereas  if  they  swear  to  an  actual  demise 
the  case  will  be  taken  out  of  the  statute. 

The  construction  suggested  in  Crosby  v.  Wadsworth, 
of  the  first  section  of  the  statute,  has  since  been  attempted 
to  be  extended  to  the  third  section.  It  has  been  contended 
that  the  leases  mentioned  in  the  third  section,  as  requiring 
to  be  assigned  by  writing,  must  be  intended  such  leases 
as  are  required  by  the  first  and  second  sections  of  the 

(*79) 


Oy  PAROL  AGREEMENTS.  9] 

statute  to  be  created  by  deed  or  writing,  viz.  leases  con- 
vejing  a  larger  interest  to  the  party  than  for  a  term  of 
three  years ;  but  the  Lord  C.  Baron,  at  nisi  prius,  ruled 
otherwise,  and  appears  to  have  held,  that  although  an 
interest  was  created  by  parol,  by  virtue  of  the  second 
section,  yet  it  cannot  be  assigned  without  a  note  in 
writing,  by  reason  of  the  third  section(/).  And  even 
a  tenancy  from  year  to  year  created  by  parol,  cannot  be 
surrendered,  although  by  mutual  consent,  by  parol(^). 


But  it  has  been  decided,  that  a  mere  license  is  not 
within  the  first  section  of  the  statute  of  frauds.  This  was 
decided  in  the  case  of  Wood  v.  Lake(/i)(30).     A  parol 

(/)  See  Bolting  v.  Martin,  1  Camp.  Ca.  13,  but  qu.  whether  the 
agreement  or  the  assignment  was  by  parol. 

(g)  Mollet  V.  Brayne,  2  Camp.  Ca.  103.  See  Stone  v.  Whiting,  2 
Stark.  235 ;  Thomson  v.  Wilson,  2  Stark.  379  ;  Phipps  v.  Sculthorpe^ 
1  Barn.  &  Aid.  50 ;  Thomas  v.  Cook,  2  Stark.  408  ;  2  Barn.  &  Aid. 
119. 

(h)  Say.  3  ;  and  see  Winter  v.  Brockwell,  8  East,  308  ;  Rex  v.  In- 
habitants of  Standon,  2  Mau.  &  Selw.  461 ;  Tayler  r.  AVaters,  2  Marsh, 
651  ;  7  Taunt.  74;  Rex  v.  Inhabitants  of  Horndon,  4  Mau.  &  Selw. 
562. 

(30)  See  Cook  v.  Stear7is,  1 1  Mass.  Rep.  533,  536.  Ricker  v.  Kel- 
[ey,  1  Greenl.  Rep.  117.  Thompson  \.  Gregory,  4  Johns.  Rep.  81. 
Jackson  v.  Buell,  9  Johns.  Rep.  298. 

In  Cook  r.  Stearns,  where  the  defendant  claimed  the  right  by  license 
of  the  former  owner  of  the  land  to  make  the  dam,  bank  and  canal  in 
question,  the  possession  of  the  locns  in  quo  being  admitted  to  be  in  the 
plaintif!';  and  he  claimed  the  right  of  entering  thereon  to  repair  and  re- 
move obstructions  ;  "  because  those,  whose  estate  the  plaintiff'  now 
holds,  permitted  him  to  enter  and  make  the  bank,  and  dig  the  canal ;" 
and  without  describing  the  mill  as  ancient,  or  setting  up  any  prescriptive 
right  to  an  easement  in  the  close  of  the  plaintitf,  he  "  alleges  (hat  he 
had  the  consent,  legally  obtained,  to  erect  his  works,  of  the  former  owncc 
of  the  close  ;  and  because  of  that  consent,  the  works  being  out  of  repair, 
he  entered  to  make  the  necessary  repairs."  The  Court  considered  (he 
plea  of  the  defendant  bad  ;  it  not  sh«wing  such  a  license  as  may  be 


92  OF  PAROL  AGREEMENTS. 

agreement  was  entered  into  for  liberty  to  stack  coals  on 
part  of  a  close  for  seven  years,  and  that  during  this  term 
the  person  to  whom  it  was  granted  should  have  the  sole  use 
(*)of  that  part  of  the  close  upon  which  he  was  to  have  the 
liberty  of  stacking  ^oals(I).  Lee,  C.  J.  and  Dennison, 
held  the  agreement  to  be  good.  They  relied  upon  the 
case  of  Webb  and  Paternoster(i),  where   they  said  it  is 

(i)  Palm.  71. 

(T)  Sayer  is  but  an  inaccurate  reporter.  It  is  not  stated,  but  the  fact 
is,  that  an  annual  payment  was  reserved  in  respect  of  the  easement. 

pleaded,  and  indeed  the  interest  claimed  being  not  in  the  nature  of  a 
license,  but  of  an  estate,  or  at  least  an  easement  in  the  land,  which  can- 
not be  acquired  without  writing  or  prescription,  or  such  a  possession  or 
use  as  furnishes  presumption  of  a  grant :  neither  of  which  was  averred 
in  the  plea.  "A  license,"  said  the  Chief  Justice,  "is  technically  an 
authority  given  to  do  some  one  act,  or  a  series  of  acts  on  the  land  of 
another,  without  passing  any  estate  in  the  land.  Such  as  a  license  to 
hunt  in  another's  land,  or  to  cut  down  a  certain  number  of  trees. 
These  are  held  to  be  revocable  when  executory,  unless  a  definite  term 
is  fixed,  but  irrevocable  when  executed.  See  Viner's  Abr.  tit.  License, 
A.  E.  D.  G.  and  the  authorities  therein  cited,  which  have  been  examin- 
ed and  found  to  support  the  positions  laid  down  by  the  compiler..  It  is 
also  holden  that  such  licenses  to  do  a  particular  act,  but  passing  no  es- 
tate, may  be  pleaded  without  deed.  But  licenses,  which  in  their  nature 
amount  to  the  granting  of  an  estate  for  ever  so  sliort  a  time,  are  not 
good  without  deed,  and  are  considered  as  leases,  and  must  always  be 
pleaded  as  such."  Upon  the  same  principles  it  was  held  in  Pond  v. 
Pond,  14  Mass.  R.  403,  where  the  defendant  Being  sued  in  trespass  for 
cutting  down  and  carrying  away  trees  on  a  particular  close,  he  set  up  a 
license  from  the  plaintiff;  and  it  appeared  that  partition  was  made  in  the 
probate  court  according  to  the  agreement  of  the  parties  ;  but  not  so  as 
to  constitute  a  legal  partition  ;  held,  that  such  an  agreement  was  a 
license  to  enter  and  occupy  ;  but  the  suing  of  legal  process  to  effect 
partition  would  amount  to  a  revof^ation  of  the  license  ;  and  any  subse- 
quent trespass  would  be  without  justification. 

In  Jackson  v.  Buell  the  point  decided  was,  that  where  a  grantor  re- 
serves in  his  deed  of  conveyance  the  right  to  erect  a  dam  on  the  bank 
of  a  stream  of  water  specified,  it  was  an  interest  in  the  land ;  and  that 
ejectment  would  lie  for  it. 

(*S0) 


GF  PAROL  AGREEMENTS. 


93 


laid  down,  that  a  grant  of  a  license  to  stack  hay  upon 
land,  does  not  amount  to  a  lease  of  the  land.  As  the 
agreement  in  the  present  case  was  only  for  an  easement, 
and  not  for  an  interest  in  the  land,  it  did  not  amount  to 
a  lease,  and  consequently  it  was  not  within  the  statute  of 
frauds.  Mr.  Justice  Forster  concurred  in  opinion,  that 
the  agreement  did  not  amount  to  a  lease,  but  he  inclined 
to  be  of  opinion,  that  the  words  in  the  statute,  any  un- 
certain  interest  in  land,  did  extend  to  this  agreement ;  but 
Lee  and  Dennison  thought  those  words  related  only  to 
interests,  which  were  uncertain  as  to  the  time  of  their 
duration.  After  time  taken  to  consider,  it  was  holden, 
that  the  agreement  was  good  for  the  seven  years. 

The  case  referred  to  in  Palmer  does  not  seem  to  bear 
out  the  judgment  in  the  above  case  :  the  decision  turned 
upon  another  point ;  but  Montague  and  Haughton  both 
thought  that  the  interest  in  that  case  was  such  as  bound 
the  land  in  the  hands  of  a  subsequent  lessee.  That  case 
arose  before  the  statute  pf  frauds,  and  it  would  require  a 
considerable  stretch  to  make  it  apply  to  a  case  since  the 
statute.  No  one  will  deny,  that  these  cases  are  within  the 
mischief  against  which  the  Legislature  intended  to  guard. 
In  Wood  and  Lake,  the  plaintiff  was  to  have  the  sole  use 
of  the  part  of  the  land  upon  which  he  should  stack  his 
coals.  How  is  this  to  be  distinguished  in  substance  from 
an  actual  demise  for  seven  years  ?  It  appears  to  be  in  the 
very  teeth  of  the  statute,  which  extends  generally  to  all 
(*)leases,  estates  or  interests.  The  statute  expresses  an 
anxious  intention  to  embrace  interests  of  exery  descrip- 
tion. How  can  it  be  argued,  that  a  license  not  counter- 
mandable,  and  which  confers  the  sole  use  of  a  ])lace  on 
a  man,  is  not  an  interest  within  the  statute  ?  Upon  what 
principle  is  it,  that  the  person  entitled  to  such  an  ease- 
ment may  maintain  trespass  ?  This  relaxation  of  the 
statute  holds  out  a  strong  temptation  to  a  man  in  pos- 
session of    land,   under  a   parol    agreement,  to  commit 

(*S1) 


94 


OF  PAROL  AGREEMENTS. 


peijury,  in  order  to  ensure  to  himself  a  more  permanent 
interest  in  the  land  than  the  statute  would  permit  him 
to  claim,  were  the  real  transaction  disclosed.  The  case 
of  Wood  V.  Lake  has,  however,  been  followed  in  several 
recent  cases. 

It  has  been  decided,  that  if,  after  a  lease  has  been 
granted,  the  landlord  makes  improvements  on  the  estate, 
in  consideration  of  an  agreement  to  pay  an  additional 
sum  per  annum,  the  sum  is  not  rent,  and  the  agreement 
is  collateral  to  the  lease,  and  may  therefore  be  recovered 
upon,  although  by  parol(y). 


The  fourth  section  of  the  Act  extends  as  well  to  interests 
created  de  dovo  out  of  an  estate,  as  to  subsisting  interests. 
Therefore  an  agreement  for  an  assignment  of  a  lease  will 
not  be  binding,  unless  made  in  writing(/c)(31). 

In  a  case  in  Lord  Raymond (/),  Treby,  Chief  Justice, 
reported  to  the  other  Justices,  that  it  was  a  question  be- 
fore him  at  a  trial  at  nisi  prius  at  Guildhall,  whether  the 
sale  of  timber,  growing  upon  the  land,  ought  to  be  in 
writing,  by  the  statute  of  frauds,  or  might  be  by  parol  ? 
And  he  was  of  opinion,  and  gave  the  rule  accordingly, 
(*)that  it  might  be  by  parol,  because  it  was  but  a  bare 
chattel;  and  to  this  opinion  Mr.  Justice  Powell  agreed. 
This  decision,  however,  may  be  thought  to  be  overruled  by 


( j)  Hoby  V.  Roebuck,  2  Marsh.  433. 

{k)  Anon.  1  Ventr.  361 ;  see  Poultney  v.  Holmes,  1  Str.  405. 

(/)  Anon.  1  Lord  Raym.  182.     See  Hob.  173 ;   1  Atk.  175. 

(31)  Where  a  person  writes  his  signature,  and  affixes  his  seal  on  the 
back  of  a  lease  it  is  not  an  assignment  of  the  lease  :  And  although  it  be 
agreed  between  the  assignor  and  assignee,  that  J.  S.  should  fill  up  the 
assignment  over  the  signature  and  he  does  so,  the  case  is  still  within 
the  statute  of  frauds.     Jackson  v.  Tihis,  2  Johns.  Rep.  430. 

But  an  assignment  of  a  lease,  in  writing,  though  not  under  seal,  is 
effectual.     Hollidaij  v.  JMarahal,  7  Johns.  Rep.  211. 

(*82) 


OF  PAROL  AGREEMENTS.  gr 

the  late  case  of  Crosby  v.  Wadsworth(wi),  where  a  sale  of 
a  standing  crop  of  mowing  grass  then  growing  was  held 
to  be  within  the  statute(32). 

The  distinction  between  them  appears  to  be,  that  in 
this  case,  the  exclusive  right  to  the  vesture  of  the  land 
was  conferred  during  a  limited  period,  whilst,  in  the  for- 
mer case,  a  mere  right  of  entry  to  cut  and  carry  away 
the  trees  would  have  been  held  to  pass.  Indeed,  it  does 
'  not  appear  by  whom  the  trees  were  to  be  felled  and  car- 
ried away. 

In  the  very  recent  case  of  Smith  v.  Surman(n),  the 
agreement  was  to  sell  trees  standing  as  timber,  at  so  much 
a  foot.  The  proprietor  had  given  orders  to  cut  them 
down,  and  the  purchaser  bought  them  after  two  of  them 
had  been  actually  felled.  It  was  held  that  this  was  not 
a  contract  within  the  fourth  section,  but  a  contract  for 
the  purchase  of  the  trees  when  they  should  be  cut  down 
and  severed  from  the  freehold. 

In  Parker  v.  Staniland,  the  Court  expressed  its  dis- 
inclination to  extend  the  case  of  Crosby  v.  Wadsworth, 
which  one  learned  Judge  referred  to  the  circumstance, 
that  the  grass  was  growing,  and  therefore  the  purchaser 
had  an  intermediate  interest  in  the  land  while  the  crops 
were  growing  to  maturity,  before  they  were  gathered. 
Therefore  a  sale  of  potatoes  in  the  ground,  and  which  had 
never  been  severed,  at  so  much  a  sack,  to  be  taken  away 
immediately,  was  held  not  to  be  within  the  statute  ;  be- 
cause the  contract  was  confined  to  the  sale  of  potatoes, 
(*)and  nothing  else  was  in  the  contemplation  of  the  parties. 
They  were  to  be  taken  immediately,  and  it  was  quite  ac- 

(m)  6  East,  602,  el  supra  ;  Waddington  v.  Bristow,  2  Bos.  &  Pull. 
462 ;  and  see  2  Taunt.  41,  j)er  Mansfield,  C.  J. 

(»)    9  Barn.  &  Cress.  561  ;  S.  C.  4  Man.  &  R.  455. 

(32)  See  JVewcomh  v.  Ramar,  2  Johns.  Rep.  421.  in  nota. 

(*83) 


gg  OF  PAROL  AGREEMENTS. 

cidental  if  they  derived  any  further  advantage  from  being 
in  the  land.  The  purchaser  had  only  an  accommodation, 
and  no  interest  in  the  soil.  The  land  was  considered  as 
a  mere  warehouse  for  the  potatoes(o). 

In  a  case  decided  in  the  same  term  in  the  Common 
Pleas,  where  growing  turnips  were  sold,  but  no  particular 
time  was  stated  for  their  removal,  nor  did  it  appear  what 
the  degree  of  their  maturity  was,  the  Court,  without  ad- 
verting to  these  circumstances,  held  it  to  be  a  sale  of  an 
interest  in  land  within  the  statute^/?).  It  must  be  admit- 
ted to  be  very  difficult  to  distinguish  the  cases(33). 

(o)  Parker  v.  Staniland,  11  East,  365. 

( p)  Emerson  v.  Heelis,  2  Taunt.  38  ;  see  5  Barn.  &  Cress.  833. 

(33)  It  may  be  proper  to  notice  in  this  place,  that  no  title  will  pass  to  a 
purchaser  of  real  estate,  under  a  sheriff's  sale,  without  a  deed  or  note  in 
writing.  Simonds  v.  Callin,  2  Caines'  Rep.  61.  Jackson  v.  Catling  2 
Johns.  Rep.  248. 

So,  a  sale  of  land  by  town  officers,  without  deed,  is  within  the  statute  of 
frauds.  Jachson  v.  Bull,  2  Caines'  Cas.  in  Error,  301.  S.  C.  1  Johns. 
Cas.  81.     See  Thomas  v.  Trustees,  <$-c.  3  Marsh.  299. 

So,  a  contract  for  the  sale  of  pews  in  a  house  for  public  worship,  is 
within  the  statute.  Fieeport  v.  Bariol,  3  Green).  340.  An  agreement 
by  parol  to  modify  a  former  agreement  respecting  an  interest  in  lands, 
is  void  :  As,  where  A.  leased  certain  lands  to  B.  and  it  was  afterwards 
agreed,  by  parol,  that  B.  should  not  use  the  pasture  land  without  paying 
for  it,  it  was  held,'that  this  agreement  was  within  the  statute  of  frauds. 
Togon  V.  JVIooney,  9  Johns.  Rep.  358.  So,  an  agreement  to  extend 
the  time  for  the  performance  of  a  contract  in  writing  for  the  conveyance 
of  land,  is  within  the  statute.  Hasbrouck  v.  Tappen,  15  Johns.  Rep. 
200. 

Possession  is  an  interest  in  land,  within  the  statute  ;  and  a  contract 
for  the  sale  and  delivery  of  the  possession  of  land  and  the  improvements 
thereon,  must  be  in  writing.  Howard  v.  Easton-,  7  Johns.  Rep.  205. 
But  a  parol  agreement  to  pay  for  improvements  made  on  land,  is  not 
within  the  provisions  of  the  statute.  Benedict  v.  Beebe,  1 1  Johns.  Rep. 
145.     See  Frear  v.  Hardcnbtirg,  5  Johns.  Rep.  272. 

So,  an  agreement  for  the  exchange  of  lands  is  within  the  statute,  and 
must  be  in  writing.     jRz'ce  v.  Peet,  15  Johns.  Rep.  603. 


OF  PAROL  AGREEMENTS.  M 

In  a  Still  later  case(9),  where  potatoes  stated  to  be  then 
growing  on  three  acres  and  a  half  of  land,  were  sold  by 
parol,  at  the  rate  of  25/.  per  acre,  to  be  dug  and  carried 
away  by  the  purchaser,  but  no  time  was  appointed  for 
that  purpose,  it  was  decided  that  the  contract  was  not 
within  the  statute.  Lord  Ellenborough  said,  that  if  this 
had  been  a  contract  conferring  an  exclusive  right  to  the 
land  for  a  time,  for  the  purpose  of  making  a  profit  of  the 
growing  surface,  it  would  be  a  contract  for  sale  of  an 
interest  in  or  concerning  lands,  and  would  then  fail  un- 
questionably within  the  range  of  Crosby  v,  Wadsworth. 
But  here  is  a  contract  for  sale  of  potatoes  at  so  much  per 
acre ;  the  potatoes  are  the  subject-matter  of  sale,  and 
whether  at  the  time  of  sale  they  were  covered  with  earth 
in  a  field  or  in  a  box,  still  it  was  a  sale  of  a  mere  chattel ; 
it  falls,  therefore,  within  the  case  of  Parker  v.  Staniland, 
and  that  disposes  of  the  point  on  the  statute  of  frauds. 

(*)In  the  later  case  of  Evans  v.  Roberts(r),  a  parol 
agreement  to  purchase  a  cover  of  potatoes,  to  be  turned 
up   by  the   seller  was  held   not  to  be  within  the  fourth 

(9)  Warwick  v.  Bruce,  2  Man.  &    Selw.  205  ;  and   see  Mayfield   «• 
Wadsley,  3  Barn.  &  Cress.  357;   S.  C.  5  Dowl.  &  R.  224. 
(r)  5  Barn.  &  Cress.  829  ;   S.  C.  8  Dowl.  &  R.  611. 

An  agreement  made  by  the  owner  of  land  with  certain  commission- 
ers, by  which  they  were  allowed  to  use  the  banks  of  a  river,  in  remov- 
ing obstructions,  and  in  deepening  and  widening  the  river,  and  to  use, 
occupy  and  enjoy  the  same,  for  which  they  were  to  pay  a  compensation 
to  the  owner,  who  agreed  to  allow  them  to  cut  a  canal  through  his  land, 
is  a  contract  concerning  an  interest  in  land,  and  must  be  in  writing. 
Phillips  \.  Thompson,  I.Johns.  Ch.  Rep.  131. 

A  relinquishment  of  an  equity  of  redemption  cannot  be  proved  by 
parol.     Scott  V.  JWFarland,  13  Mass.  Rep.  309. 

An   agreement  between   the   purchaser  of  land,  and  a  third  person 
that  he  should  be  admitted  as  a  partner  in  the  purchase,  within  the  stat- 
ute.    Henderson  v.  Hudson,  1  Munf.  510.     But  see  Bunnell  v.  Taintot-s^ 
Admr.  4  Conn.  Rep.  668.     See  also,  Parker  v.  Bodley,A  Bibb,  102. 
VOL.   I.  13  (*8-4) 


gg  OF  PAROL  AGREEMENTS. 

section,  although  the  crop  was  in  a  growing  state  at  the 
time  of  the  sale.  It  was  held,  that  a  sale  of  the  produce 
of  the  land,  whether  it  be  in  a  state  of  maturity  or  not, 
provided  it  be  in  actual  existence  at  the  time  of  the  con- 
tract, is  not  a  sale  of  any  interest  within  the  fourth  section. 
The  determination  of  the  Courts  to  escape  from  the  rule 
in  Crosby  v.  Wadsworth,  without  overruling  that  case, 
renders  it  somewhat  difficult  to  apply  the  law  to  indivi- 
dual cases  ;  but  the  rule  in  Evans  v.  Roberts  may  safely 
be  considered  one  of  general  application(34). 

If  an  entire  agreement  be  made  for  the  sale  of  real  and 
personal  estate,  and  the  agreement  as  to  the  land  be 
within  the  statute,  and  void,  it  cannot  be  supported  as.  to 
the  personal  property  which  was  sold  with  it(5)(35). 

(s)  Cooke  V.  Tombs,  2  Anst.  420  ;  Lea  v.  Barber,  ih.  425,  cited. 
See  Chater  v.  Beckett,  8  Term  Rep.  201  ;  and  see  Neal  v.  Viney,  1 
Camp.  Ca.  471  ;  Corder  v.  Drakeford,  3  Taunt.  382  ;  Mayfield  v, 
Wadsley,  3  Barn.  &  Cress.  367  ;  S.  C.  5  Dowl.  &  R.  224. 

(34)  A  contract  for  the  sale  of  things  annexed  to  the  freehold,  but 
which  may  be  separated  without  violence,  or  injury,  and  which,  by  the 
terms  of  the  contract,  are  to  be  separated,  is  not  within  the  statute  of 
frauds.  Bosiwick  v.  Leach,  3  Day,  476.  Nor  is  an  agreement  not  to 
exercise  a  right  regarding  the  freehold,  as  the  right  of  using  a  mill,  &c. 
within  the  statute.  lb.  So,  also,  it  seems,  that  contracts  for  the  sale  of 
gravel,  stones,  timber  trees,  and  the  boards  and  bricks  of  a  house  to  be 
|)ulled  down  and  carried  away,  are  not  within  the  statute.  The  statute 
contemplates  a  transfer  of  lands,  or  some  interest  in  them.     lb. 

As  to  agreements  between  adjoining  proprietors  of  land,  relating  to 
boundaries,  See  BoyiVs  Les.  v.  Graves,  4  Wheat.  513.  Jacksonv.  Dife- 
iing,  2  Caines'  Rep.  198.     Stutjvesanl  v.  Tompkins,  9  Johns.  Rep.  61. 

An  agreement  to  remove  a  fence  for  the  purpose  of  widening  a  cer- 
tain road,  not  within  the  statute.  Storms  v.  >fnijder,  10  Johns.  Rep. 
109. 

The  statute  does  not  apply  to  promises  raised  by  implication  of  law. 
Men  V.  Pryor,  3  Marsh.  Ken.  Rep.  306.  See  Bliss  v.  Thompson,  4 
Mass.  Rep.  488.  See  Fischli  v.  Dumarcshj,  3  Marsh.  Ken.  Rep.  23. 
Goodwin  v.  Gilbert,  9  Mass.  Rep.  610. 

(35)  See  Crawford  v.  Morrell,  8  Johns.  Rep.  2d  edit. 
(*84) 


OF  PAROL  AGREEMENTS. 


99 


SECTION   II. 
Of  the  form  and  Signature  of  the  Agreement. 


We  may  now  consider,  first,  what  is  a  sufficient  agree- 
ment ;  2dly,  what  is  a  sufficient  signature  by  the  party 
or  his  agent ;  and  3dly,  who  will  be  deemed  an  agent 
lawfully  authorized.     And, 

First  then,  it  is  to  be  observed,  that  the  statute  re- 
quires the  writing  to  be  signed  only  by  the  person  to  be 
charged  ;  and  therefore,  if  a  bill  be  brought  against  a 
(*)person  who  signed  an  agreement,  he  will  be  bound  by 
it,  although  the  other  party  did  not  sign  it,  as  the  agreement 
is  signed  by  the  person  to  be  charged  (^).  This  point  has 
been  established  by  the  concurrent  authority  of  the  Lord 
Keeper  North,  Lord  Keeper  Wright,  Lord  Chancellor 
Hardwicke,  Lord  C.  B.  Smith,  and  Bathurst  and  Aston, 
Justices,  when  Lords  Commissioners,  Lord  Chancellor 
Thurlow,  Lord  Chancellor  Eldon,  and  Sir  Wm.  Grant. 
The  legislature  has  expressly  said,  that  the  agreement 
shall  be   binding  if  signed  by  the  party  to  be  charged ; 

(I)  Ilatton  V.  Gray,  2  Ch.  Ca.  164  ;  Cotton  v.  Lee,  2  Bro.  C.  C. 
664  ;  Coleman  v.  Upcot,  5  Vin.  Abr.  527.  pi.  17 ;  Buckhouse  r. 
Crossby,  2  Eq.  Ca.  Abi.  32,  pi.  44  ;  Seton  r.  Slade,  7  Ves.  jun.  265 ; 
Fowle  V.  Freeman,  MS. ;  9  Ves.  jun.  355,  S.  C.  See  1  Scho.  &  Lef. 
20  ;  and  11  Ves.  jun.  592;  Western  v.  Russell,  3  Ves.  &  Bea.  187; 
and  see  Wain  v.  Warlters,  5  East,  10 ;  Egerton  v.  Matthews,  6  East, 
307,  which  do  not  impeach  this  doctrine  :  see  particularly  5  East,  16  ; 
and  Allen  v.  Bennet,  3  Taunt.  169.  As  to  Waini'.  Warlters,  see  Stadt 
V.  Lill,  9  East,  348  ;  1  Camp.  Ca.  242  ;  Ex  parte  Minet,  14  Ves. 
jun.  189  ;  E.r  pm7e  Gardom,  15  Ves.  jun.  286  ;  Bateman  r.  Philips, 
16  East,  272  ;  Saunders  v.  Wakefield,  4  Barn.  &  Aid.  595;  Jenkins 
V.  Reynolds,  3  Brod.  &  Bing.  14  :  S.  C.  6  Man.  86. 

(*86) 


1  QQ  OF  PAROL  AGREEMENTS. 

and  as  Lord  Hardwicke  has  observed,  the  word  party  in 
the  statute  is  not  to  be  construed  party  as  to  a  deed,  but 
person  in  general(?A)  ;  but  there  have  been  instances  in 
which  the  want  of  the  signature  to  the  agreement  by  the 
party  seeking  to  enforce  it,  has  been  deemed  a  badge  of 
fraud(y)  ;  but,  perhaps,  the  transaction  ought  not  to  be 
viewed  in  that  light,  unless  the  other  party  called  on  the 
party  who  had  not  signed  to  execute  it,  in  which  case  a 
refusal  to  sign  might  be  held  to  operate  as  a  repudiation 
of  the  contract(tyXI)(36). 

(*)In  a  late  case,  Lord  C.  J.  Mansfield  observed,  that  m 
equity  a  contract  signed  by  one  party  would  be  enforced, 
and  it  ivas  not  dear  that  it  ivas  different  at  law(x).  The 
rule  in  equity,  it  is  conceived,  is  founded  simply  on  the 
words  of  the  statute,  which  must  be  equally  binding  on 
the  courts  of  law.  There  is  not  an  objection  w^hich  can 
be  made  to  the  rule  as  applicable  to  an  action  at  law  which 
will  not  apply  with  equal  force  to  a  suit  in  equity.  In  a 
later  case,  accordingly,  upon  the  17th  section,  the  same 
learned  Judge  observed,  that  every  one  knows  it  is  the 

(u)   See  3  Atk.  503. 

\v)   See  O'Rouke  v.  Percival,  2  Ball  &  Beatty,  58. 
{w)  See  2  Ball  &  Beatty,  371  ;  and   Martin  v.  Mitchell,  3   Swanst. 
428. 

{x)  Bovven  v.  Morris,  2  Taunt.  374. 

(I)  The  author's  anxiety  to  place  the  law  upon  a  safer  footing, 
induced  him  to  bring  in  a  bill  to  amend  the  statute  of  frauds.  He 
had  not  an  opportunity  of  pressing  it  through  the  House  of  Commons  ; 
but  as  such  things  are  not  accessible,  and  the  law  will  no  doubt  be 
altered,  it  has  been  thought  right  to  print  the  bill  in  the  Appendix, 
No.  11. 


(36)  See  Bartslow  v.  Gray,  3  Greenl.  Rep.  409.  Ballard  v.  Walk- 
er, 3  Johns.  Cas.  60.  Roget  v.  Merritt,  2  Caines'  Rep.  117.  Doug- 
lass V.  Spears,  2  Nott  &  M'Cord,  207.  Cosack  v.  Bescoudres,  1 
M'Cord,  425.  Clason  v.  Bailey,  14  Johns.  Rep.  484.  Penniinan  v. 
Hartshorn,  13  Mass.  Rep.  87. 

(*86) 


OF  PAROL  AGREEMENTS.  |Q| 

daily  practice  of  the  Court  of  Chancery  to  establish  con- 
tracts signed  by  one  person  only,  and  yet  a  court  of  equity 
can  no  more  dispense  with  the  statute  of  frauds  than  a 
court  of  law  can(y).  Lord  Eldon  has  observed,  that  equity 
has  not  upon  these  points  gone  further  than  courts  of  law  : 
what  is  the  construction  of  the  statute,  what  within  the 
legal  intent  of  it  will  amount  to  a  signing,  being  the  same 
questions  in  equity  as  at  law.  Upon  that  point,  equity 
professing  to  follow  the  law,  if  a  new  question  should 
arise,  his  Lordship  said,  that  he  would  rather  send  a  case 
to  a  court  of  law(2;).  In  a  still  later  case  at  7iisi  prius, 
where  the  purchaser  only  had  signed,  Lord  Tenterden 
said  that  it  was  the  duty  of  the  auctioneer  to  sign,  and 
he  had  often  had  occasion  to  lament  they  do  not  do  so. 
What  a  court  of  equity  would  do  in  the  case  he  could  not 
possibly  say.  He  declined  deciding  the  point  according 
to  his  opinion,  as  the  counsel  would  not  undertake  to  carry 
the  same  forward  on  a  bill  of  exceptions(a). 

(*)But  although  the  agreement  must  be  signed,  yet  it 
need  not  be  so  averred  in  a  bill  for  a  specific  performance  ; 
for  the  writing,  unless  signed,  would  not  be  an  agreement, 
and  as  the  allegation  in  the  bill  of  course  is  that  there  is 
an  agreement  in  writing,  signature  must  be  presumed 
until  the  contrary  is  shown(6)(37). 

If  a  written  agreement  has  been  in  a  part  executed,  it 
seems  that  an  agreement  subsequently  entered  into  be- 
tween the  parties,  and  reduced  into  writing,  will  bind  them 
both,  if  signed  by  one  of  them(c). 

A  receipt  for   the  purchase-money  may  constitute  an 

(j/)  Allen  V.  Bennett,  3  Taunt.  176. 

(2)  18  Ves.  jun.  183. 

(a)  Wheeler  v.  Collier,  1  Mood.  &  Mai.  123. 

(6)  Rist  V.  Hobson,  1  Sim.  &  Stu.  543. 

(c)  Owen  V.  Davies,  1  Ves.  82. 

(37)   See  Cleaves  v.  Foss,  4  Greenl.  1. 

(*87) 


IQ2  OF  PAROL  AGREEMENTS. 

agreement  in  writing  within  the  statute((/) ;  and  it  has 
frequently  been  decided,  that  a  note  or  letter  will  be  a 
sufficient  agreement  to  take  a  case  out  of  the  stat- 
ute(e)(38)  ;  but  every  agreement  must  be  stamped  before 
it  can  be  Yead(f)  ;  and,  as  this  ought  to  be  done,  the 
Court  will  permit  the  cause  to  stand  over  to  get  the 
agreement  stamped,  and  will  assist  either  party  in  obtain- 
ing it  for  that  purpose. 

Thus,  in  Fowle  v.  Freeman(^),  the  agreement  was  sent 
by  the  vendor  to  his  attorney,  with  a  letter  written  at  the 
bottom,  directing  him  to  prepare  a  technical  agreement. 
The  vendor  afterwards  refused  to  perform  the  contract, 
and  the  attorney  would  not  deliver  the  agreement  to  the 
purchaser  for  the  purpose  of  getting  it  stamped,  contend- 
ing that  it  was  a  private  letter  to  him  ;  but  the  Court, 
(*)on  motion,  ordered  it  to  be  delivered  to  the  purchaser 
for  that  purpose. 

(d)  Coles  V.  Trecothick,  9  Ves.  jun.  234  ;  Blagden  v.  Bradbear, 
12  Ves.  jun.  466. 

(e)  Coleman  v.  Upcot,  5  Vin.  Abr.  527,  pi.  17 ;  Backhouse  v. 
Crossby,  2  Eq.  Ca.  Abr.  32,  pi.  44. 

(/)   Ford  V.  Compton ;  Hearne  v.  James,  2  Bro.  C.  C.  32,  309. 

ig)  Rolls,  March  8,  1804.  MS.  9  Ves.  jun.  361,  S.  C.  but  not  re- 
ported as  to  this  point.  See  infra,  ch.  4.  s.  3 ;  Clarke  v.  Terrel,  1 
Smith's  Rep.  399  ;  Coles  v.  Trecothick,  9  Ves.  jun.  234. 

(38)  In  South  Carolina,  it  has  been  decided  that  a  receipt  signed  by 
the  vendor,  in  these  words,  "  Received  of  A.  20  dollars,  being  on  ac- 
count of  a  plantation  on  the  Cypress,  sold  to  him  this  day  for  2,200  dol- 
lars, payable  in  different  instalments,  as  per  agreement.  Charleston» 
August  1,  1816,  was  sufficient  to  take  the  case  out  of  the  statute  of 
frauds.      Cosack  v.  Descoudres,  1  M'Cord,  425. 

Where  an  agent  had  agreed,  by  parol,  to  bid  for  his  principal,  at  a 
sheriff's  sale,  for  certain  real  estate,  and  who  took  the  titles  in  his  own 
name,  the  case  will  be  taken  out  of  the  statute  of  frauds,  by  an  account 
made  out  and  signed  by  him,  charging  his  principal  with  the  purchase- 
money  ;  in  which  case,  the  agent  was  decreed  to  hold  the  estate  in 
trust.     Denlon  v.  JWKenzic,  1  Des.  289. 

(*88) 


OF  PAROL  AGREEMENTS.  |Q3 

But  if  the  agreement  is  admitted  by  the  answer,  so  as  to 
dispense  with  the  necessity  of  proving  it,  the  office-copy 
of  the  bill,  or,  if  the  defendant  refuse  to  produce  it,  the 
record  itself,  may  be  read  in  support  of  the  plaintiff's  case, 
and  need  not  be  stamped,  nor  can  the  fact  of  the  agree- 
ment not  being  stamped  be  taken  advantage  of(^). 

If,  upon  a  treaty  for  sale  of  an  estate,  the  owner  write 
a  letter  to  the  person  wishing  to  buy  it,  stating,  that  if 
he  parts  with  the  estate  it  shall  be  on  such  and  such  terms 
(specifying  them)  ;  and  such  person,  upon  receipt  of  the 
letter,  or  within  a  reasonable  time  after  the  offer  is  made(z), 
accept  the  terms  mentioned  in  it,  the  owner  will  be  com- 
pelled to  perform  the  contract  wi  specie(j)(3d). 

So  if  a  man  (being  in  company)  make  offers  of  a  bar- 
gain, and  then  write  them  down  and  sign  them  ;  and 
another  person  take  them  up  and  prefer  his  bill,  that  will 
be  a  sufficient  agreement  to  take  the  case  out  of  the  stat- 
ute (/c). 

But  if  it  appear  tfiat,  on  being  submitted  to  any  person 
for  acceptance,  he  had  hastily  snatched  it  up,  had  refused 
the  owner  a  copy  of  it ;  or  if,  from  other  circumstances, 
fraud  in  procuring  it  may  be  inferred,  in  case  of  an  ac- 
tion, it  will  be  left  to  the  jury  to  say  whether  it  was  in- 
tended by  the  defendant,  at  first,  to  be  a  valid  agreement 
on   his  part,  or  as  only  containing  proposals   in  writing, 

(h)  Huddleston  v.  Briscoe,  11  Ves.  jun.  583. 
(i)  See  3  Mer.  454. 

(j)  Coleman  v.  Upcot,   6  Vin.  Abr.  627,  pi.  87.     See  Gaskarth  v. 
liOrd  Lowther,  12  Yes.  jun.  107. 
(k)  S.  C.  jjer  Lord  Chancellor. 

(39)  An  offer  of  a  bargain,  by  one  person  to  another,  imposes  no  ob- 
ligation on  the  former,  until  it  is  accepted  by  the  latter,  according  to  the 
terms  of  the  offer.  Any  qualification  of  those  terms  invalidates  the  of- 
fer, without  the  assent  of  him  who  made  it.  Eliason  v.  Henshmv,  4 
Wheat.  225,  228. 


JQ^  OF  PAROL  AGREEMENTS. 

subject  to  future  revision (/)  :  and  if  the  aid  of  equity 
be  sought,  these  circumstances  would  have  equal  weight 
(*)witli  the  Court.  So  in  every  case  it  must  be  consider 
ed,  whether  the  note  or  correspondence  import  a  concluded 
agreement :  if  it  amount  merely  to  treaty,  it  will  not  sus- 
tain an  action  or  suit (m) (40). 

The  letters  will  not  constitute  an  agreement  unless  the 
answer  to  the  offer  is  a  simple  acceptance,  without  the 
introduction  of  any  new  term(w). 

And  although  a  given  time  be  named  in  the  offer  for 
the  acceptance  of  it,  yet  it  may  be  retracted  at  any  time 
before  it  is  actually  accepted(o). 

And  where  a  letter  or  other  writing  do  not  in  itself 
evidence  all  the  terms  of  tllfe  engagement  by  which  the 
person  signing  it  consents  to  be  bound,  but  it  requires 
from  the  other  party  not  a  simple  assent  to  the  terms 
stated,  but  a  special  acceptance  which  is  to  supply  a 
farther  term  of  the  agreement ;  there  it  is  obvious  that 
such  special  acceptance  must  be  expressed  in  writing,  for 
otherwise  the  whole  agreement  will  not  be  in  writing, 
within  the  statute  of  frauds(p). 

The  note  or  writing  must  specify  the  terms  of  the  agree- 
ment, for  otherwise  all  the  danger  of  peijury  which  the 
statute  intended  to  guard  against  would  be  let  in(41). 

(/)  See  Knight  v.  Crockford,  1  Esp.  Ca.  189. 

(m)  Huddleston  V.  Briscoe,  11  Ves.  jun.  683;  Stratford  v.  Bos- 
worth,  2  Ves.  &  Bea.  341  ;   Ogilvie  v.  Foljambe,  3  Mer.  53. 

(n)  Holland  v.  Eyre,  2  Sim.  &  Stu.  194  ;  Routledge  v.  Grant,  4 
Bing.  653  ;  1  Moore  &  Payne,  717  ;  Smith  v.  Surman,  9  Barn.  & 
Cress.  561. 

(o)  Routledge  v.  Grant,  tibi  sup. 

{p)  Boys  V.  Ayerst,  6  Madd.  316. 

(40)  See  Hobby  i-.  Finch,  Kirby,  14. 

(41)  A  writing  acknowledging  the  reception  of  a  sum  of  money,  be- 
ing the  cash  part  of  the  consideration  of  a  sale  of  land  to  the  plaintiff, 

(*89) 


OF  PAROL  AGREEMENTS.  ]Q5 

Thus,  upon  the  sale  of"  nine  houses  which  were  in 
mortgage,  the  vendor  wrote  a  letter  to  the  mortgagee  to 
this  effect:  "Mr.  Leonard,  pray  deliver  my  writings  to 
the  bearer,  I  having  disposed  of  them.  Am,  &c."  The 
vendor  afterwards  refused  to  perform  the  contract,  and 
pleaded  the  statute  of  frauds  to  a  bill  filed  by  the  pur- 
chaser for  a  specific  performance,  and  the  plea  was 
(*)allowed  ;  because  it  ought  to  be  such  an  agreement  as 
specified  the  terms  thereof,  which  this  did  not,  though 
it  was  signed  by  the  party  ;  for  this  mentioned  not  the 
sum  that  was  to  be  paid,  nor  the  number  of  houses  that 
were  to  be  disposed  of;  whether  all,  or  some,  or  how 
many;  nor  to  whom  they  were  to  be  disposed  of;  neither 
did  this  letter  mention  whether  they  were  disposed  of  by 
way  of  sale   or  assignment  of  lease(9)  :  but  where   the 

{q)  Seagood  v.  Meale,  Prec.  C'ha.  560;  Rose  v.  Cunynghame,  11 
Ves.  jun.  550  ;  Card  v.  JafiVay,  2  Scbo.  &  Lef.  374  ;  Lord  Ormond  v. 
Anderson,  2  Ball  &  Beat.  363  ;  and  see  Champion  v.  Plummor,  1  New 
Rep.  252  ;  Hinde  v.  Whitehouse,  7  East,  558  ;  Cooper  v.  Smith,  15 
East,  103  ;  Richards  v.  Porter,  6  Barn.  &  Cress.  437  ;  S.  C.  9  Dowl. 
&  R.  497  ;  all  four  cases  on  the  17th  section. 

without  saying  more,  is  not  such  a  memorandum  as  will  take  the  case 
out  ot'  the  statute  of  frauds.     Ellis  v.  Deadman,  4  Bibb,  466. 

A  memorandum  of  the  sale  of  land,  to  be  effectual,  must  not  only  be 
signed  by  the  party  to  be  charged,  but  must  contain  the  substantial  terms 
of  the  contract,  expressed  with  such  certainty  that  they  may  be  under- 
stood from  the  contract  itself,  or  some  other  writing  to  which  it  refers, 
without  resorting  to  parol  evidence.  Parkliurst  v.  Van  Cortlandt,  1 
Johns.  Ch.  Rep.  273.  S.  C.  on  appeal,  14  Johns.  Rep.  15.  See  Abeel 
V.  Radcliff,  13  Johns.  Rep.  297.  Givens  v.  Caldey,  2  Des.  188.  Par- 
ker V.  Bodley,  4  Bibb,  102.  Colson  v.  Thompson,  2  AVheat.  336,  341. 
In  Virginia,  it  has  been  decided,  that  a  letter  containing  a  promise 
to  make  a  deed  of  a  tract  of  land,  "  according  to  contract,"  is  a  suf- 
ficient memorandum,  under  the  statute  of  frauds,  notwithstanding  the 
terms  of  the  contract  are  not  mentioned ;  provided  the  party  claiming 
the  conveyance,  can  prove  by  the  testimony  of  one  witness,  the  price 
which  was  agreed  to  be  paid  for  the  land.  Johnson  v.  Ronald's  Admr. 
4  Munf.  77. 

VOL.  ..  14  (*90) 


106 


OF  PAROL  AGREEMENTS. 


property  is  described  generally  as  "  Mr.  O.'s  house,"  pa- 
rol evidence  has  always  been  admitted  to  show  to  what 
house  the  treaty  related(r). 

So  where(5),  upon  a  parol  agreement,  the  vendor  sent 
a  letter  to  the  purchaser,  informing  him  that,  at  the  time 
he  contracted  for  the  sale  of  the  estate,  the  value  of  the 
timber  was  not  known  to  him,  and  that  he  (the  purchaser) 
should  not  have  the  estate,  unless  he  would  give  a  larger 
price  ;  Lord  Hardwicke  held,  that  the  letter  could  not  be 
sufficient  evidence  of  the  agreement,  the  terms  of  it  not 
being  mentioned  in  the  agreement  itself. 

So  in  a  recent  case,  where  an  auctioneer's  receipt  for 
the  deposit  was  attempted  to  be  set  up  as  an  agreement, 
the  Master  of  the  Rolls  rejected  it,  because  it  did  not  state 
the  price  to  be  paid  for  the  estate  ;  and  it  could  not  be 
collected  from  the  amount  of  the  deposit,  as  it  did  not 
appear  what  proportion  it  bore  to  the  price(^). 

And  here  we  may  notice  a  case  where  an  agreement  was 
(*)executed  which  referred  to  certain  covenants,  which 
had  been  read,  contained  in  a  described  paper,  which,  in 
fact,  contained  the  terms  of  the  agreement.  It  appeared 
that  all  the  covenants  contained  in  that  paper  had  not 
been  read  ;  and  which  of  them  had  been  read,  and  which 
had  not,  was  the  difficulty,  which  could  only  be  solved  by 
parol  testimony  ;  and  Mr.  Justice  Buller  held  clearly, 
that  such  evidence  was  inadmissible(M),  as  it  would  intro- 
duce all  the  mischiefs,  inconvenience,  and  uncertainty 
the  statute  was  designed  to  prevent ;  and  Lord  Redesdale 
has  since  unqualifiedly  approved  of  this  decision (?(;). 

(r)   Ogilvie  v.  Foljambe,  3  Mer.  53. 

(s)  Clerk  v.  Wright,  1  Atk.  12  ;  and  see  Clinan  v.  Cooke,  1  Scho. 
&  Lef.  22. 

(/)  Blagdenv.  Bradbear,  12  Ves.  jun.  46G  ;  see  Elmore  v.  Kings- 
cote,  5  Barn.  &  Cress.  583  ;  S.  C.  8  Dowl.  &  R.  343. 

(«)  Brodie  v.  St.  Paul,  1  Ves.  jun.  326;  Higginson  v.  Clowes,  15 
Ves.  jun.  516  ;  Lindsay  v.  Lynch,  3  Sch.  &  Lef.  1. 

{v>)   1  Sch.  &  Lef.  38;  and  sec  O'Herlihy  v.  Hedges,  ibid.  123. 

(*91) 


OF  PAROL  AGREEMENTS, 


107 


Neither  will  a  performance  be  compelled  on  a  note  or 
letter,  if  any  error  or  omission,  however  trifling,  appear 
in  the  essential  terms  of  the  agreement. 

Thus  in  a  case(2)  (I)  before  Lord  Hardwicke,  the 
bill  was  brought  to  have  a  specific  performance  of  an 
agreement,  from  letters  which  had  passed  between  the 
parties.  It  appeared,  that  a  certain  number  of  years  pur- 
chase was  to  be  given  for  the  land,  but  it  could  not  be 
ascertained  whether  the  rents  upon  a  few  cow-gates  were 
(*)5s.  or  Is.  ;  apd  although  there  was  no  other  doubt, 
Lord  Hardwicke  held,  that  such  an  agreement  could  not 
be  carried  into  execution.  He  said,  that  in  these  cases  it 
ought  to  be  considered,  whether  at  law  the  party  could 
recover  damages ;  for  if  he  could  not,  the  Court  ought 
not  to  carry  such  agreements  into  execution. 

The  late  Lord  C.  J.  Mansfield  observed,  that  there  had 
been  many  cases  in  Chancery,  some  of  which  he  thought 
had  been  carried  too  far,  where  the  Court  had  picked 
out  a  contract  from  letters,  in  which  the  parties  never 
certainly  contemplated  that  a  complete  contract  was  con- 
tained (y). 

{x)  Lord  Middleton  v.  Wilson,  et  e  contra,  Chan.  1741,  MS. ;  S.  C. 
Lofft,  801,  cited.  See  9  Ves.  jun.  252  ;  Stokes  v.  Moore,  1  Cox,  219  ; 
Popham  V.  Eyre,  Lofl>,  786  ;  Gordon  v.  Trevalyan,  1  Price,  64  ;  Blore 
V.  Sutton,  3  Mcr.  237. 

iy)  3  Taunt.  172. 

(I)  The  case  is  in  Reg.  Lib.  1741,  fo.  260,  by  the  name  of  Lord 
Middleton  v.  Eyre.  The  estate  was  sold  by  an  agent  to  Dr.  AVilson, 
by  parol,  and  the  parties  appear  to  have  bound  themselves  by  letters, 
the  particulars  of  which  do  not  appear  in  the  Register's  book.  The 
parties  beneficially  interested  afterwards  sold  the  estate  for  a  greater 
price  to  Lord  Middleton,  who  filed  a  bill  for  a  specific  peformance  of 
the  agreement,  and  Dr.  Wilson  filed  a  cross-bill.  The  cross-bill  was 
dismissed  with  costs,  and  in  the  original  cause  a  specific  performance 
was  decreed.  The  point  in  the  text  is  not  stated  in  the  Registrar's 
book. 

(*92) 


2Qg  OF  PAROL  AGREEMENTS. 

But  although  a  letter  do  not  in  itself  contain  the  whole 
agreement,  yet  if  it  actually  refer  to  a  writing  that  does, 
that  will  be  sufficient,  although  such  writing  is  not 
signed  (43). 

Thus  in  a  case  where  an  estate  was  advertised  to  be  let 
for  three  lives,  or  thirty-one  years,  and  an  agreement  was 
entered  into  for  a  lease,  in  which  the  term  for  which  it 
was  to  be  granted  was  omitted  ;  Lord  Redesdale  held,  that 
if  the  agreement  had  referred  to  the  advertisement,  parol 
evidence  mig^ht  have  been  admitted  to  shjow  what  was  the 
thing  (namely  the  advertisement)  so  referred  to,  for  then 
it  would  be  an  agreement  to  grant  for  so  much  time  as 
was  expressed  in  the  advertisement ;  and  then  the  iden- 
tity of  the  advertisement  might  be  proved  by  parol  evi- 
dence (z)(44).  And  Sir  William  Grant,  in  a  late  case,  ex- 
pressed his  opinion,  that  a  receipt  which  did  not  contain 
the  terms  of  the  agreement,  might  have  been  enforced  as 
an  agreement,  had  it  referred  to  the  conditions  of  sale, 
(*)which  would  have  entitled  the  Court  to  look  at  them 
for  the  terms(«). 

So  an  agreement  not  containing  the  name  of  the  buyer 
may  be  made  out  by  connecting  it  with  a  letter  from  the 
buyer  on  the  subject(6). 

(z)  See  Clinan  v.  Cooke,  1  Scho.  &  Lef.  22  ;  and  see  Cass  v.  Wa- 
terhoiise,  Prec.  Cha.  29 ;  Hiiide  v.  Wliitehouse,  7  East,  558  ;  Feoffees 
of  Heriot's  Hospital  v.  Gibson,  2  Dow,  301  ;  Powell  v.  Dillon,  2  Ball 
&  Beat.  416. 

(a)  Blagden  v.  Bradbear,  12  Ves.  jun.  466  ;  and  see  Shippey  v.  Der- 
rison,  5  Esp.  Ca.  190  ;  Hinde  v.  Whitehouse,  7  East,  558  ;  Kenwor- 
thy  u.  Schofield,  2  Barn.  &  Cress.  945  ;  S.  C.  4  Dowl.  &  R.  556  ;  1 
Turn.  &  Russ.  352. 

(6)  Allen  r.  Bennet,  3  Taunt.  169;  Western  v.  Russell,  3  Ves.  & 
Bea.  187. 

(43)  A  reference  in  a  deed,  to  a  will,  not  executed  pursuant  to  stat- 
ute, will  have  the  effect  of  incorporating  it  with,  and  making  it  a  part  of 
the  deed.     Igardv.  Montgomery,  1  Nott  &  M'Cord,  381. 

(44)  See  Johnson  v.  DoaaUVs  Achnr.  4  Munf.  77. 

^^•9.3) 


OF  PAROL  AGREEMENTS. 


109 


In  a  case(c)  where  an  agreement  for  sale  was  reduced 
into  writing,  but  not  signed,  owing  to  the  vendor  having 
failed  in  an  appointment  for  that  purpose  ;  the  vendee's 
agent  wrote  to  urge  the  signing  of  the  agreement ;  and 
the  vendor  wrote  in  answer  a  letter,  in  which,  after  stating 
his  having  been  from  home,  he  said,  "  his  word  should 
always  be  as  good  as  any  security  he  could  give."  And 
this  was  held  by  Lord  Thurlow  to  take  the  case  out  of 
the  statute,  as  clearly  referring  to  the  written  instrument. 
The  ground  of  this  decision  was,  that  the  vendor  had 
agreed,  by  writing,  to  sign  the  agreement.  If  he  had 
said  he  never  would  sign  it,  he  could  not  have  been 
bound  ;  but  if  he  said  he  never  would  sign  it,  but  would 
make  it  as  good  as  if  he  did,  it  would  be  a  promise  to 
perform  it ;  if  he  said  he  would  never  sign  it,  because 
he  would  not  hamper  himself  by  an  agreement,  it  would 
be  too  perverse  to  be  admitted  (J).  It  appears  that 
Lord  Thurlow  was  diffident  of  his  opinion  in  this  case  ; 
and  Lord  Redesdale  has  declared,  that  he  had  often  dis- 
cussed the  case,  and  he  could  never  bring  his  mind  to 
agree  with  Lord  Thurlow's  decision,  because  he  (Lord 
Redesdale)  thought  the  true  meaning  of  the  agreement 
(*)was,  "  I  will  not  bind  myself,  but  you  shall  rely  on  my 
word(e)." 

But  in  these  cases  there  must  be  a  clear  reference  to 
the  particular  paper,  so  as  to  prevent  the  possibility  of 
one  paper  being  substituted  for  another(y). 

And  if  the  agreement  is  defective,  and  the  letter  refers 
to  a  different  contract  from   that   proved  by  the  opposite 

(c)  Tawney  v.  Crovvther,  3  Bro.  C.  C.  161,318;  and  see  Forster 
V.  Hale,  3  Ves.  jun.  696  ;  Cooke  v.  Tombs,  2  Anstr.  420  ;  Saunder- 
son  V.  Jackson,  2  Bos.  &  Pull.  238  ;  and  9  Ves.  jun.  250. 

(d)  Per  Lord  Thurlow,  3  Bro.  C.  C.  320. 

(e)  See  1  Scho.  &  Lef.  34  ;  and  see  Tanner  r.  Smart,  6  Barn.  & 
Cress.  603  ;   S.  C.  9  Dowl.  &  R.  549. 

(/)  Boydell  r.  Drummond,  11  East,  142. 

(*94) 


110 


OF  PAROL  AGllEExMENTS. 


party,  the  letter  cannot  be  adduced  as  evidence  of  the 
contract  set  up.  The  letter  must  be  taken  altogether, 
and  if  it  falsify  the  contract  proved  by  the  parol  testi- 
mony, it  will  not  take  the  case  out  of  the  statute(^-). 

As  we  shall  hereafter  see,  an  auctioneer  is  an  agent 
lawfully  authorized  for  the  vendor  and  purchaser  within 
the  statute.  Upon  the  sale  of  estates  by  auction,  a  de- 
posit is  almost  universally  paid,  for  which  the  auctioneer 
gives  a  receipt,  referring  to  the  particulars,  or  indorsed 
on  them,  and  amounting,  in  most  cases,  to  a  valid  agree- 
ment on  the  part  of  the  vendor  within  the  statute(/<.). 
And  it  seems  that  a  bill  of  sale,  or  entry  by  the  auctioneer, 
of  the  account  of  the  sale,  in  his  books,  stating  the  name 
of  the  owner,  the  person  to  whom  the  estate  is  sold,  and 
the  price  it  fetched,  would  be  deemed  a  sufficient  memo- 
randmii  of  the  agreement  to  satisfy  the  statute(z).  This, 
however,  it  clearly  would  not,  unless  it  either  contained 
the  conditions  of  the  sale  and  the  particulars  of  the  pro- 
perty, or  actually  referred  to  them,  so  as  to  enable  the 
Court  to  look  at  them(y'j(45). 

(*)A  note  or  letter,  written  by  the  vendor  to  any  third 
person,  containing  directions  to  carry  the  agreement  into 
execution,  will,  subject  to  the  before-mentioned  jules,  be 

ig)  Cooper  V.  Smith,  15  East,  103. 

{h)  See  Blagden  v.  Bradbear,  12  Ves.  jutir  466,  et  supra. 

(i)  See  Emmerson  v.  Heelis,  2  Taunt.  33,  elinfra ;  but  see  Mussell 
V.  Cooke,  Prec.  Cha.  533 ;  Charlevvood  v.  Duke  of  Bedford,  1  Atk. 
497 ;  Ramsbottom  v.  Mortley,  2  Mau.  &  Selw.  445. 

{j)  Blagden  v.  Bradbear,  uhi  sup.  Hinde  v.  Whitehouse,  7  East,  558  ; 
Kenworthy  v.  Schofield,  2  Barn.  &  Cress.  945;  S.  C.  4  Dow).  &  R. 
556. 

(45)  See  Clason  v.  Baileij,  14  Johns.  Rep.  490.  Davis  v.  Robertson, 
1  Rep.  Con.  Ct.  71. 

The  original  memorandum  made  by  the  auctioneer  must  be  produc- 
ed on  the  trial,  if  in  existence  ;  a  copy  will  not  be  received  as  evi- 
dence,    lb. 

(*95) 


OF  PAROL  AGREESIENTS.  i  j  i 

a  sufficient  agreement  to  take  a  case  out  pf  the  statute(A;). 
This  was  laid  down  by  Lord  Hardwicke,  who  said,  that 
it  had  been  deemed  to  be  a  signing  within  the  statute, 
and  agreeable  to  the  provision  of  it.  And  the  point  was 
expressly  determined,  in  the  year  1719,  by  the  Court  of 
Exchequer(/). — Upon  an  agreement  for  an  assignment 
of  a  lease,  the  owner  sent  a  letter,  specifying  the  agree- 
ment, to  a  scrivener,  with  directions  to  draw  an  assign- 
ment pursuant  to  the  agreement ;  and  Chief  Baron  Bury, 
Baron  Price,  and  Baron  Page,  were  of  opinion,  that  the 
letter  was  a  writing  within  the  statute  of  frauds.  And 
the  same  doctrine  appears  to  apply  to  a  letter  written  by 
a  purchaser (m). 

In  Kennedy  v.  Lee(?i),  Lord  Eldon  observed,  that  in 
order  to  form  a  contract  by  letter,  he  apprehended  nothing 
more  was  necessary  than  this,  that  when  one  man  makes 
an  offer  to  another  to  sell  for  so  much,  and  the  other 
closes  with  the  terms  of  his  offer,  there  must  be  a  fair 
understanding  on  the  part  of  each  as  to  what  is  to  be  the 
purchase-money,  and  how  it  is  to  be  paid,  and  also  a 
reasonable  description  of  the  subject  of  the  bargain.  It 
must  be  understood,  however,  that  the  party  seeking  the 
specific  performance  of  such  an  agreement,  is  bound  to 
find  in  the  correspondence,  not  merely  a  treaty,  still  less 
a  proposal  for  an  agreement,  but  a  treaty  w  ith  reference 
to  which,  mutual  consent  can  be  clearly  demonstrated,  or 
a  proposal  met  by  that  sort  of  acceptance,  which  makes  it 
(*)no  longer  the  act  of  one  party  but  of  both.  It  follows, 
that  he  is  bound  to  point  out  to  the  Court,  upon  the  face 
of  the  correspondence,  a  clear  description  of  the  subject- 
matter  relative  to  which  the  contract  was  in  fact  made  and 

(Ar)  Wclford  V.   Beazely,  3   AtU.  503.  See  Seagood  v.  Meale,  Prec. 
Chu.660  ;   Cooke  v.  Tombs,  2  Anstr.  420. 
(/)   Smith  V.  Watson,  Biuib.  65  ;  S.  C.  MS. 
{ill)   Rose  V.  Cunynghame,  11  Vee.  jun.  550. 
{n)  3  Mer.  441  ;  and  see  Ogilvie  r.  Foljambe,  3  Mer.  53. 

(*96) 


I  12  OF  PAROL  AGREEMENTS. 

entered  into.  His  Lordship  added,  that  he  did  not  mean 
(because  the  cases  which  had  been  decided  would  not 
bear  him  out  in  going  so  far)  that  he  was  to  see  that  both 
parties  really  meant  the  same  precise  thing,  but  only  that 
both  actually  gave  their  assent  to  that  proposition,  which, 
be  it  what  it  may,  de  facto  arises  out  of  the  terms  of  the 
correspondence.  The  same  construction  must  be  put 
upon  a  letter,  or  a  series  of  letters,  that  would  be  applied 
to  the  case  of  a  formal  instrument ;  the  only  difference 
between  them  being,  that  a  letter  or  correspondence  is 
generally  more  loose  and  inaccurate  in  respect  of  terms, 
and  creates  a  greater  difficulty  in  arriving  at  a  precise 
conclusion. 

In  Cooth  V.  Jackson(o),  Lord  Rosslyn  put  the  case  of 
a  bond  of  reference  to  a  surveyor,  the  price  to  depend 
upon  his  "valuation,  only  to  ascertain  how  much  an  acre 
the  purchaser  was  to  pay  for  the  land.  And  his  Lordship 
said,  he  should  conceive  that  not  to  be  within  the  statute. 

But  rent-rolls,  particulars  of  estates,  abstracts,  &;c.  de- 
livered by  the  vendor  on  the  treaty  for  sale,  will  not  be 
considered  as  an  agreement,  although  signed  by  him,  and 
containing  the  particulars  of  the  agreement ;  nor  will  let- 
ters written,  or  representations  made  by  him,  to  creditors, 
concerning  the  sale,  receive  that  construction. 

Thus,  in  a  casefjy)  where  A  agreed  by  parol  with  B 
for  the  purchase  of  lands  ;  shortly  afterwards,  a  rent-roll 
was  delivered  to  A,  which  B  dated  and  altered  in  his 
own  hand-writing  ;  and  it  was  intituled,  "  Land  agreed 
(*)to  be  sold  by  B  to  A,  from,  &c.  at  twenty-one  years  pur- 
chase, for  the  clear  yearly  rent."  An  abstract  of  the  title, 
also,  stating  the  contract,  was  delivered  by  ^'s  agent,  and 
also  further  particulars  and  papers  at  different  times.  B 
also  wrote  to  several  of  his  creditors,  informing  them  that 

(o)   6  Yes.  jun,  17. 

(p)  Whaley  v.  Bagenel,  6  Bro.  P.  C.  5. 

(*97) 


OF  PAROL  AGREEiMENTS. 


US 


he  had  agreed  with  A.  for  the  sale  of  the  estate,  at  twenty- 
one  years  purchase ;  referred  tenants  to  A.  as  owner  of 
the  estate ;  and  set  up  the  contract  as  a  bar  to  an  elegit, 
B.  afterwards  refused  to  perform  the  agreement ;  and  to 
a  bill  filed  for  a  specific  performance,  pleaded  the  statute 
of  frauds,  and  the  plea  was  allowed. 

So,  in  a  later  case(</),  upon  a  bill  filed  by  a  Vendee,  for 
a  specific  performance   of  a  parol  agreement  for  sale  of 
lands,  it  appeared  that  the  vendor  gave  the  purchaser  a 
particular  of  the  property  to  be  sold,  with  the  terms  and 
conditions,  all   in   his  own   hand-writing,   and  signed  by 
him  ;  and  it  was  afterwards   delivered,  by  agreement   of 
both  parties  to  an  attorney,  to    prepare  the   conveyance 
from,  who  prepared  a  draft,  and  brought  it  to  the  parties, 
and  they  read   over  and   approved  of  it,  and   agreed  ta 
execute  the  same,  whenever  a  fair  copy  could  be  written 
out.     The  defendant,  however,  refused  to  fulfil   his  part 
of  the  agreement,  and  pleaded  the  statute  of  frauds  to  the 
bill ;  and,  as  the  particular  was  delivered  at  the  outset 
of  the  treaty,  no  agreement  being  then  made,  the  Court 
held  it  could  only  be  delivered  as  a  list  or  catalogue   of 
the  matters  for  sale,   to  enable   the  purchaser    to  form 
a  proper  estimate   of  their  value  ;  that   the   signing  the 
particular   could    have    no    other    effect  than   to   give   it 
authenticity,  as  a  true   list  of  the  items  then  offered   for 
sale  ;  and  that  the   subsequent  acts  could   not  affect  the 
original  nature  of  the  particular,  and  turn  it  into  an  agree- 
ment. 

(*)Although  an  agreement  be  reduced  into  writing  by 


(9)  Cook  I'.  Tombs,  2  Anst.  420  ;    and   see  Chss  v.   Wateihouse^ 
Prec.  Cha.  29. 

vor..   I.  16  (*98) 


1 14  OF  PAROL  AGREEMENTS. 

a  person  present  at  the  making  of  it,  yet  if  the  parties  do 
not  sign  it,  they  will  not  be  bound  by  it(r)(46). 

If  an  agreement  contain  all  the  terms,  the  sending  of 
it,  as  instructions  to  a  person  to  prepare  a  proper  agree- 
ment, will  not  be  deemed  an  intention  to  extend  the 
agreement,  but  merely  to  reduce  it  into  technical  lan- 
guage. 

Thus,  in  Fowle  v.  Freeman (s),  after  some  treaty  for 
the  purchase  of  an  estate,  certain  terms  were  agreed  upon 
and  written  down  by  Freeman  the  vendor,  and  afterwards 
written  out  by  him,  as  an  agreement;  viz. — "March 
12th,  1803.  I  agree  to  sell  to  Mr.  Fowle  my  estate,  &c. 
for  the  sum  of  27,000/.  upon  the  following  conditions, 
&c."  [stating  them.]  Freeman  signed  this  agreement, 
and  read  it  to  Fowle,  who  approved  of  it.  Freeman  then 
underwrote  a  letter  to  his  solicitor  in  town  to  the  follow- 
ing effect : — "  Sir,  please  to  prepare  a  proper  agreement 
for  Mr.  Fowle  and  me  to  sign,  and  send  it  to  me  at  this 
place.  You  will  also  deliver  to  Mr.  Everett,"  (the  gen- 
tleman who  carried  the  letter  to  town,)  "  an  abstract  of 
my  title-deeds  for  his  examination.  As  soon  as  the  title- 
deeds  are  approved  of,  he  engages  to  lend  me  5,000/.  till 
Michaelmas  next."  The  letter  was  signed  and  dated  by 
him,  and  was  delivered  by  Mr.  Everett  to  the  solicitor  in 

(r)  Gunter  v.  Halsey,  Ambl.  586  ;  Whitchurch  v.  Bevis,  2  Bro.  C. 
C.  659  ;  Ramsbottom  v.  Tunbridge,  Ramsbottom  v.  Mortley,  2  Mau. 
&  Sehv.  434.  445. 

(s)   Rolls,  8th  March,  1801,  MS.  ;  9  Ves.  Jun.  351,  S.  C. 

(46)  A  parol  agreement  for  the  sale  of  land  will  not  be  decreed 
specifically,  though  the  vendor  had  given  instructions,  in  writing,  stating 
the  terms,  to  an  attorney,  to  draw  the  deeds ;  and  though  the  deeds 
were  drawn  in  pursuance  of  such  instructions,  and  the  vendor  took 
them  home  and  wrote  to  the  vendee,  informing  her  that  they  were  ready, 
and  requested  her  to  attend  and  settle  the  business,  but  died  before  the 
parties  met.     Givens  v.  Calder,  2  Des.  171. 


OF  PAROL  AGREEMENTS.  |J5 

town.  Freeman  afterwards  refused  to  perform  the  agree- 
ment ;  and,  to  a  bill  filed  by  Fowle  for  a  specific  per- 
formance, pleaded  the  statute  of  frauds.  The  Master  of 
the  Rolls  held,  that  if  the  attorney  had  prepared  an  agree- 
ment, according  to  the  letter,  Freeman  would  have  been 
compelled  to  execute  it,  and  the  attorney  could  not  alter 
(*)the  agreement  itself  in  any  one  respect.  A  letter  or 
proposal  will  do,  although  the  party  repents ;  and  many 
decrees  have  been  founded  merely  on  letters.  If  this  ob- 
jection were  to  hold,  he  said,  it  might  be  contended,  that 
if  an  agreement  contained  a  reference  to  title-deeds  to 
be  formally  executed,  it  would  not  do ;  and  his  Hnor 
decreed  a  specific  performance. 

In  these  cases  it  should  be  observed,  that  letters  may 
be  stated  in  a  bill  as  constituting  the  alleged  agreement, 
or  as  evidence  of  an  alleged  parol  agreement.  In  the 
first  case,  the  defendant  may  insist  that  they  do  not  make 
out  a  concluded  agreement,  and  no  extrinsic  evidence 
can  be  received;  in  the  latter  he  may  plead  the  statute 
of  frauds(i). 


II.  We  are  next  to  consider  what  is  a  sufficient  sig- 
nature by  the  party  or  his  agent.  Before  the  statute  of 
frauds,  an  agreement,  although  reduced  into  writing  and 
signed,  was  not  considered  as  a  written  agreement  unless 
sealed  ;  but  it  was  regarded  'as  a  parol  agreement,  and 
the  writing  as  evidence  of  it(i^). 

It  has  been  justly  said  that  the  same  rule  prevails 
since  the  statute  of  frauds(a-)  ;  for  the  law  of  England 
recognizes  only  two  kinds  of  contracts  ;  viz.   specialties 

(/)  Birce  v.  Bletchley,  6  Madd.  17. 
(tt)  See  1  Ch.  Ca.  85. 

(x)  See  Marq.  of  Normanby  v.  Duke  of  Devonshire,  2  Freem.  21G. 

(*99) 


116 


OF  PAROL  AGREEMENTS. 


and  parol  agreements,  which  last  include  all  writings  not 
under  seal,  as  well  as  verbal  agreements  not  reduced  into 
writing(?/)(47).  In  the  case  of  Wheeler  v.  Newton(^), 
the  agreement  not  having  been  sealed,  seems  to  have 
been  insisted  upon,  as  leaving  the  case  within  the  statute  : 
and  (*)Lord  Commissioner  Rawlinson  said,  that  agree- 
ments in  writing,  though  not  sealed,  had  some  better 
countenance  since  the  statute  of  frauds  and  perjuries  than 
they  had  before(I). 

This  doubt  must  have  arisen  from  the  common-law 
doctrine  before  noticed,  that  an  agreement  not  under  seal 
is  simply  a  parol  agreement,  and  the  writing  evidence  of 
it;  but  there  certainly  was  no  foundation  for  the  doubt : 
the  statute  makes  signing  only  requisite  to  the  validity  of 
a  written  agreement,  and  it  is  now  clearly  established, 
that  sealing  is  not  necessary  ;  and  if  a  man  be  in  the 
habit  of  printing  or  stamping  instead  of  writing  his  name, 
he  would  be  considered  to  have  signed  by  his  printed 
pame(«)(48). 


(y)  Rann  v.  Hughes,  7  Term  Rep.  350,  n. ;   S.  C.  MS.  in  tot.  verbis. 
(z)  Free.  Ch.  16. 

(a)  Saundersonr.  Jackson,  2  Bos.  &  Pull.  238;  Schneiders.  Nor- 
ris,  2  Mau.  &  Selw.  286. 

(I)  In  Dawson  v.  Ellis,  1  Jac.  &  Walk.  624,  the  Court  was  of  opin- 
ion, that  [{  Jl.  contract  verbally  to  sell  to  B,  and  afterwards  contract  by 
writing  to  sell  to  C,  and  then  convey  the  estate  to  B.,  he  (jB.)  is  not 
liable  to  perform  the  contract  with  C,  although  he  had  notice  of  it  be- 
fore the  conveyance. 

(47)  See  Ballard  v.  Walker,  3  Johns.  Cas.  60. 

(48)  An  assignment  of  a  lease,  by  a  writing  not  under  seal,  is  valid. 
Hotlidnij  v.  J[Iarshall,  7  Johns.  Rep.  211.  But  a  blank  assignment  of 
a  lease,  is  inoperative  :  Thus,  if  a  person  write  his  name  and  affix  his 
seal  on  the  back  of  a  lease,  and  at  the  same  time,  it  is  agreed  between 
him  and  the  person  to  whom  the  assignment  is  to  be  made,  that  an  as- 
signment shall  be  written  by  a  third  person,  over  the  signature  and  seal, 
and  this  is  done,  and  the  deed  delivered  to  the  assignee,  the  assignment 

(MOO) 


OF  PAROL  AGREEMENTS.  J  J -7 

The  signature  required  by  the  statute  is  to  have  the 
effect  of  giving  authenticity  to  the  whole  instrument ;  and 
where  the  name  is  inserted  in  such  a  manner  as  to  have 
that  effect,  it  does  not  much  signify  in  what  part  of  the 
instrument  it  is  to  be  found (6)  (49). 

Therefore,  the  signing  the  name  at  the  beginning  of 
the  agreement  will  take  it  out  of  the  statute  ;  as,  if  a 
person  write  the  agreement  himself,  and  begin,  "^.jB. 
agrees  to  sell,  &c."  and  this  is  only  in  analogy  to  the 
case  of  a  testator  writing  his  name  at  the  beginning  of 
his  will,  which  is  equivalent  to  his  signing  it ;  and  yet 
the  statute  expressly  requires  a  signature(c). 

(*)And  such  a  signature  will  be  sufficient,  although  a 
place  be  left  for  a  signature  at  the  bottom  of  the  instru- 
ment(^)(I)  ;  and  yet,  as  Lord  Eldon  has  observed,  it  is  im- 

(6)  Vide  Stokes  v.  Moore,  stated  infra ;  Allen  v.  Bennet,  3  Taunt. 
169. 

(c)  Knight  V.  Crockford,  1  Esp.  Ca.  189  ;  and  see  1  Bro.  C.  C.  410 ; 
3  Esp.  Ca.  182  ;  9  Ves.  jun.  248  ;  and  Saundeison  v.  Jackson,  2  Bos. 
&  Pull.  238.  See  Cooper  v.  Smith,  15  East,  103  ;  Morison  v.  Tur- 
nour,  18  Ves.  jun.  175  ;  Propert  v.  Parker,  1  Russ.  &  Ryl.  625. 

(d)  Saunderson  v.  Jackson,  ubi  supra. 

(I)  This  question  frequently  arises  upon  wills  of  personalty.  Walker 
V.  Walker,  decided  by  the,  Court  of  Delegates,  19th  Feb.  1805.  Ann 
Walker  made  her  will,  comprising  real  and  personal  estate,  which  she 
signed  and  sealed,  and  then  folded  up  with  this  indorsement ;  "  I  signed 
and  sealed  my  will  to  have  it  ready  to  be  witnessed  the  first  opportu- 
nity I  could  get  proper  persons  for  it."  The  usual  attestation  clause 
was  added,  but  not  signed  by  any  witness.  At  her  death  the  instru- 
ment was  found  in  her  drawer  in  the  envelop,  and  it  was  determined 
not  to  be  a  good  will  of  the  personal  property,  on  the  ground,  that 
something  appearing   by  the  attestation  clause  to  be  intended    to  be 


is  a  nullity.  Jackson  v.  Tihis,  2  Johns.  Rep.  430.  See  Ulen  v.  Kil- 
tredge,  7  Mass.  Rep.  233.  Clason  v.  Bailey,  14  Johns.  Rep.  484. 
JVelson  V.  Dubois,  13  Johns.  Rep.  175. 

(49)   SeeArgenbrightv.  Campbell,  3  Hen.  &  Munf.  144,  198.      Pen- 
niman  v.  Hartshorn,  13  Mass.  Rep.  87. 

(*101) 


118 


OF  PAROL  AGREEMENTS. 


possible  not  to  see  that  the  insertion  of  the  name  at  the 
beginning  was  not  intended  to  be  a  signature,  and  that  the 
paper  was  meant  to  be  incomplete  till  it  was  further 
signed. 

And  if  the  party  know  the  contents  of  the  agreement, 
a  subscription,  as  a  witness,  is  a  sufficient  signing(e). 

So,  where  a  clerk  of  an  agent  duly  authorized  to  treat 
for  a  principal,  signed  an  agreement  thus,  "  Witness 
A.  B.  for  C.  D.  agent  to  the  seller,"  it  was  holden  to  be 
out  of  the  statute(/).  And  it  is  sufficient,  it  seems,  if 
the  initials  of  the  name  are  set  down(^). 

But  a  letter  without  a  signature  of  the  name  in  some 
way  cannot  be  brought  within  the  statute.  Therefore, 
a  letter  written  by  a  mother  to  her  son,  beginning  "  My 
dear  Nicholas,"  and  ending  "  your  affectionate  mother," 
(*)with  a  full  direction,  containing  the  son's  name  and 
place  of  residence,  is  not  a  good  agreement  within  the 
statute  (/t)  (50). 

It  seems  that  the  signature  of  the  purchaser  by 
himself  or  his  agent,  on  the  back  of  the  particulars  and 
conditions  of  sale,  with  the  sum  opposite  to  it,  is  a  suffi- 
cient compliance  with  the  directions  of  the  act(^). 

And,  as  we  have  seen,  an  agreement  not  signed,  may 

(e)  Welford  v.  Beazely,  3  Atk.  603.     See  9  Ves.  jun.  251. 

(/)  Coles  V.  Trecothick,  9  Ves.  jun.  234 ;  1  Smith's  Rep.  233  ;  but 
see  Blore  v.  Sutton,  3  Mer.  237. 

{g)  Phillimore  v.  Barry,  1  Camp.  Ca.  513. 

{h)   Selby  V.  Selby,  Rolls,  1817,  MS. 

(i)  Vide  supra,  and  Hodgson  v.  Le  Bret,  Camp.  N.  P.  233 ;  Philli- 
more V.  Barry,  ib.  513  ;  Goom  v.  Aflalo,  6  Barn.  &  Cress.  117;  S.  C. 
9  Dowl.  &  R.  148  ;  cases  on  the  17th  sect.  ;  Emmerson  v.  Heelis,  2 
Taunt.  38. 

done,  the  instrument  was  not  complete  as  the  last  will  of  the  testatrix. 
1  Mer.  503.     See  Beaty  v.  Beaty,  1  Addams,  154. 

(50)  See  Wkilioellw.  JVyer,  11  Mass.  Rep.  6.     Bailey  v.  Ogdens,  3 

Johns.  Rep.  399. 
(*102) 


OF  PAROL  AGREEMENTS. 


119 


be  supported  by  a  signature  to  a  writing  referring  to  the 
agreement.    . 

But  the  mere  ahering  the  draft  of  the  convejance  will 
not  take  a  case  out  of  the  statute(A;)  ;  neither  will  the 
writing  over  of  the  whole  draft  by  the  defendant  with  his 
own  hand  be  sufficient,  as  there  must  be  a  signature(/). 
To  this  rule  we  may,  perhaps,  refer  the  case  of  Stokes  v. 
Moore (m)  ;  where  the  defendant  wrote  instructions  for 
a  lease  to  the  plaintiff,  in  these  words  :  viz.  "  The  lease 
renewed ;  Mrs.  Stokes  to  pay  the  King's  tax  ;  also  to  pay 
Moore  24/.  a  year,  half-yearly ;  Mrs.  Stokes  to  keep  the 
house  in  good  tenantable  repair,  fee."  Stokes,  the  lessee, 
filed  a  bill  for  a  specific  performance,  and  the  Court  of 
Exchequer  held  it  not  to  be  a  sufficient  signing  to  take 
the  agreement  out  of  the  statute  ;  although  it  was  not 
necessary  to  decide  the  point(51). 

Lord  Eldon  is  reported  to  have  said,  that  he  had  some 
doubt  of  the  doctrine  in  this  case(n). 

(*)Mr.  Baron  Eyre  appears  to  have  put  it  on  its  true 
grounds.  He  said,  that  the  signature  is  to  have  the  effect 
of  giving  authenticity  to  the  whole  instrument ;  and  if  the 
name  is  inserted  so  as  to  have  that  effect,  he  did  not  think 
it  signified  much  in  what  part  of  the  instrument  it  was  to 
be   found ;  it  was,   perhaps,  difficult,  except  in  the  case 

(fc)  Hawkins  v.  Holmes,  1  P.  Wms.  776,  which  overruled  Lowther 
V.  Carril,  1  Vern.  221.     See  Shippey  v.  Derrison,  5  Esp.  Ca.  190. 

{I)  Ithel  V.  Potters  1  P.  Wms.  771,  cited. 

(m)  Stokes  v.  Moore,  1  Cox,  219  ;  Cox's  n.  to  1  P.  Wms.  771. 
See  1  Smith's  Rep.  244. 

{n)  And  see  Enimerson  r.  Heelis,  2  Taunt.  38,  and  observe  how  the 
purchaser's  name  was  signed  there.  See  also  Morison  v.  Tumour,  18 
Ves.  jun.  175  ;  Western  v.  Russel,  3  Yes.&  Bea.  187  ;  OgiJvie  v.  Fol- 
jambe,  3  Mer.  53. 

(51)  See  Givens  v.  Calder,2  Des.  171.  Sec  note  to  Weightmanv. 
Caldivell,  4  Wheat.  89. 

(*103) 


120 


OF  PAROL  AGREEMENTS. 


of  a  letter  with  a  postscript,  to  find  an  instance  where  a 
name  inserted  in  the  middle  of  a  writing  can  well  have 
that  effect ;  and  then  the  name  being  generally  found  in 
a  particular  place,  bj  the  common  usage  of  mankind,  it 
may  very  probably  [qu.  properly]  have  the  effect  of  a 
legal  signature,  and  extend  to  the  whole ;  but  he  did 
not  understand  how  a  name  inserted  in  the  body  of  an 
instrument,  and  applicable  to  particular  purposes,  could 
amount  to  such  an  authentication  as  is  required  by  the 
statute. 


III.  In  considering  what  signature  satisfies  the  requisi- 
tion of  the  statute,  we  have  necessarily  adverted  to  signa- 
tures by  agents  ;  and  it  will  now  be  proper  to  consider 
who  will  be  deemed  an  agent  lawfully  authorized  within 
the  statute  of  frauds  to  sign  an  agreement  for  the  sale  of 
purchase  of  an  estate(52). 

In  the  first  and  third  sections  of  the  statute  of  frauds, 
which  relate  to  leases,  &c.  the  writing  is  required  to  be 
signed  by  the  parties  making  it,  or  their  agent  authorized 
by  writing.  This  latter  requisite  is  omitted  in  the  fourth 
and  seventeenth  sections  of  the  statute(I).  The  Legis- 
lature (*)seems  to  have  taken  this  distinction,  that  where 
an  interest  is  intended  to  be  actually  passed,  the  agent  must 
be  authorized  by  writing  ;  but  that  where  a  mere  agree- 
ment is  entered  into,  the  agent  need  not  be  constituted 
by  writing  ;  and  therefore  an  agent  may  be  authorized  by 
parol   to  treat  for,  or  buy  an  estate,  although  the  contract 

(I)  In  a  note  to  Mr.  East's  7th  vol.  p.  665,  it  is  said,  that  by  the 
fourth  section,  to  affect  lands,  the  note  must  be  signed  by  an  agent 
thereunto  lawfully  authorized  by  ivriting,  &c.,  which  words,  "  by  writ- 
ing," are  omitted  in  the  seventeenth  section,  touching  the  sale  of  goods. 
This  mistake  must  be  attributed  to  the  hurry  of  the  press,  for  the 
agent  is  in  neither  section  required  to  be  authorized  by  writing. 

(52)  See  Trvin  v.  Thompson,  4  Bibb,  295. 


( 


OF  PAROL  AGREEMENTS. 


121 


itself  must  be  in  writiiig(o)(53).  It  is,  however,  in  all 
cases,  highly  desirable  that  the  agent  should  have  a  written 
authority.  Where  he  has  merely  a  parol  authority,  it 
must  frequently  be  difficult  to  prove  the  existence  and 
extent  of  it(;;) ;  although  it  may  be  observed  that  his 
testimony  will  be  received  with  great  caution  against  his 
signature  as  agent.  If,  however,  at  the  time  of  signing, 
he  make  a  declaration  that  he  has  no  authority,  his  prin- 
cipal will  not  be  bound(9).  But  of  course,  although  he 
purchase  in  his  own  name,  yet  the  fact  of  the  agency  so 
as  to  charge  the  principal  may  be  made  out  by  parol 
evidence(r). 

Although  an  agent  is  authorized  to  sell  at  a  particular 
price,  yet  it  seems  that  his  clerk  cannot  contract  without 
a  special  authority  or  agreement  for  that  purpose(.s)  ; 
which,  however,  need  not  be  in  writing. 

(*)The  principal  may  revoke  the  authority  of  the  agent 
at  any  time  before  an  agreement  is  executed  according  to 
the  statute,  although  the  agent  has  previously  agreed  ver- 
bally to  sell   the  property(i)  ;  and  an  intended  purchaser 


(o)  Waller  v.  Hendon,  5  Vin.  Abr.  524,  pi.  45  ;  Wedderburne  r. 
Carr,  in  the  Exchequer,  T.  T.  1775 ;  3  Wooddes.  423,  cited  ;  Rucker 
t).  Cammeyer,  1  Esp.  Ca.  175  ;  Coles  v.  Trecolhick,  9  Ves.  jun.  234  ; 
1  Smith's  Rep.  233  ;  Barry  v.  Lord  Barrymore,  1  Sch.  &  Lef.  Rep. 
28,  cited ;  Clinan  v.  Cooke,  ib.  22  ;  Emmerson  v.  Heelis,  2  Taunt. 
38. 

(p)  Mortlock  u.  Buller,  10  Ves.  jun.  292.  See  Daniel  v.  Adams, 
Anibl.  495  ;  Charlcwood  v.  the  Duke  of  Bedford,  1  Atk.  497  ;  and 
see  5  Yin.  Abr.  522,  pi.  35  ;  Wyatt  v.  Allen,  MS.  App.  No.  9. 

{q)  Howard  v.  Braithwaite,  1  Ves.  &  Beam.  202. 

()•)  Wilson  V.  Hart,  1  Moore,  45. 

(«)  Coles  V.  Trecothick,  9  Ves.  jun.  234. 

{t)   See  Farmer  v.  Robinson,  2  Campb.  339,  n. 

(63)  See  FAving  v.  Tees,  1  Binn.  450.  Talbot  v.  Botoeu,  1  Marsh. 
Ken.  Rep.  436. 

VOL.   1.  16  (*105) 


122 


OF  PAROL  AGREEMENTS. 


may  in  like  manner  revoke  his  authority  to  his  agent  to 
purchase(M). 

The  statute  requires  every  agreement  as  to  lands,  or 
some  memorandum  or  note  thereof,  to  be  in  writing,  and 
signed  hy  the  party  to  he  charged,  or  some  other  person 
thereunto,  (that  is,  to  the  signing  thereof  )(a:)  by  him 
authorized.  And  that  as  to  goods,  some  note  or  memo- 
randum in  writing  of  the  bargain  shall  be  made  and 
signed  by  the  parties  to  be  charged  by  such  contracts,  or 
their  agents,  thereunto  authorized.  And  yet  it  has  been 
decided,  that  the  signature  of  the  party  to  be  charged  by 
himself  or  agent  is  sufficient,  even  in  a  contract  for 
goods(?/),  although  the  other  party  has  not  signed,  and 
consequently  is  not  bound  ;  so  that  there  appears  to  be 
no  difference  between  the  two  clauses  of  the  statute,  in 
regard  to  the  appointment  and  power  of  an  agent. 

It  has,  however,  been  repeatedly  decided,  that  an  auc- 
tioneer is  the  agent  of  both  parties  upon  a  sale  of  goods, 
so  as  to  be  enabled  to  bind  them  both  under  the  sta- 
tute(2)(54)  ;  whilst,  on  the  contrary,  it  has  been  decided, 
and  lately  seemed  to  be  the  prevailing  opinion,  that  the 
auctioneer  is  not  the  agent  of  the  purchaser  upon  a  sale 
(*)by  auction  of  estates,  so  as  to  be  authorized  to  bind  him 
by  setting  down  in  writing  the  terms  of  the  contract(«) ; 

(m)  As  to  sales  by  auction,  see  Blagden  v.  Bradbear,  12  Ves.  jun. 
467  ;  Mason  v.  Armitage,  13  Ves.  jun.  26. 

{x)   See  1  Ves.  &  Beam.  207. 

{y)  Allen  v.  Bennet,3  Taunt.  169. 

[z)  Simon  V.  Motivos,  3  Burr.  1921  ;  Bull.  Ni.  Pri.  280  ;  1  Blackst. 
599;  Rucker  r.  Cammeyer,  1  Esp.  Ca.  105;  Hinder.  Whitehouse* 
7  East,  558 ;  and  see  Rondeau  v.  Wyatt,  2  H.  Blackst.  67  ;  and  1  Ca. 
&  Opin.  142,  143  ;  Phillimore  v.  Barry,  1  Camp.  Ca.  513  ;  and  see 
the  observations  in  the  2d  edit,  of  this  work,  p.  57 — 64. 

(a)  Stansfield  v.  Johnson,  1  Esp.  Ca.  101  ;  Walker  v.  Constable,  2 

(54)  See  Brown  v.  Gillilund,  3  Des.  540. 
(*106) 


OF  PAROL  AGREEMENTS. 


123 


but  in  a  late  case,  upon  the  sale  of  an  interest  within  the 
fourth  section,  the  Court  of  Common  Pleas  held,  that  the 
auctioneer  was  an  agent  for  the  purchaser,  even  upon  a 
sale  of  estates(35).     Lord  C.  J.  Mansfield,  in  delivering 
judgment,  asked,  By  what  authority  does  he  write  down 
the  purchaser's  name  ?     By  the  authority  of  the  purchaser. 
These  persons   bid,  and   announce  their   biddings  loudly, 
and  particularly  enough  to  be  heard  by  the  auctioneer. 
For  what  purpose  do  they  do  this  ?     That  he  may  write 
down  their  names  opposite  to  the  lots  ;  therefore  he  writes 
the  name  by  the  authority  of  the  purchaser,  and  he  is  an 
agent  for  the  purchaser(6).     In  a  later  case(c),  the  Court 
of  Common  Pleas  adhered  to  their  former  decision,  and 
they  considered  the  signature  by  the  auctioneer  of  the 
purchaser's   name  alone,  sufficient,  although  he  was  only 
an  agent,  to  bind  the  principal ;  and  the  conditions  ex- 
pressly required   that  the  highest  bidder  should    sign  a 
contract  for  the  purchase.     The  principal,  however,  was 
present,  and  did   not  object  to  the  signature  by  the  auc- 
tioneer until  after  it  was  made.     The  action  in  this  case 
was  brought  for  the  auction  duty.     Upon  a  bill  filed  by 
the  seller  for  a  specific  performance,  the  Master  of  the 
Rolls  decreed   it,  following  the  decisions  in  the  Common 

Esp.  Ca.  659  ;  1  Bos.  &  Pull.  306  ;  Buckmaster  r.  Harrop,  7  Ves.  jun. 
341  ;  13  Ves.  jun.  456  ;  Coles  v.  Trecothick,  9  Ves.  jun.  234  ;  1 
Smith,  257.     See  13  Ves.  jun.  473. 

{b)  Emmerson  r.  Heelis,  2  Taunt.  38.  See  1  Cas.  and  Opin.  142, 
143. 

(c)  "White  I'.  Proctor,  4  Taunt.  209. 

(.55)  In  the  case  of  J\PComb  v.  Wright,  it  was  decided,  that  an  auc- 
tioneer is  the  agent  of  the  purchaser,  either  of  lands  or  goods,  at  auc- 
tion, to  sign  a  contract  for  him,  as  the  highest  bidder  ;  and  his  writing 
the  name  of  the  purchaser,  as  the  highest  bidder,  on  the  memorandum 
of  sale,  immediately  on  receiving  the  bid,  and  knocking  down  the  ham- 
mer, is  a  sufficient  signing  of  the  contract  within  the  statute  of  frauds. 
4  Johns.  Ch.  Rep.  659. 


124 


OF  PAROL  AGREEMENTS. 


Pleas,  although  his  own  opinion  was,  that  an  auctioneer 
is  not  the  agent  of  the  purchaser(^).  The  rule,  there- 
fore, (*)may  now  be  laid  down  generally,  that  an  auction- 
eer is  an  agent  lawfully  authorized  by  the  purchaser(56). 
It  was  always  clear,  that  an  auctioneer,  appointed  by  a 
vendor,  was  a  good  agent  for  him  within  the  statute(e). 

And  although  a  purchaser  bid  by  an  agent,  yet  the 
auctioneer  is  still  duly  authorized  to  sign  the  agree- 
mentff). 

The  agent  must  be  a  third  person  :  neither  of  the  con- 
tracting parties  can  be  the  agent  of  the  other(o)  ;  and 
therefore,  although  a  purchaser  is  bound  by  the  signature 
of  the  auctioneer,  yet  the  auctioneer  himself  cannot  main- 
tain an  action  upon  such  a  contract,  because  the  agent 
Avhose  signature  is  to  bind  the  defendant  must  not  be  the 
other  contracting  party  upon  the  record(A). 

This,  however,  has  since  been  doubted(/)  ;  and  it  has 
been  held  that  the  auctioneer's  clerk  can  bind  the  purchaser 
by  an  entry  made  in  his  presence.  The  Court  considered 
the  clerk  as  agent  for  both  parties.  The  auctioneer  and 
his  clerk  may  be  considered  as  the  constituted  agents  of 
the  vendor  ;  he  appoints  the  former  to  announce  the  bid- 
dings, and  the  latter  to  take  down  the  names  of  the  pur- 
chasers, and  the  prices  of  the  lots.  The  clerk  may  be 
considered  not  only  as  the  agent  of  the  vendors  but  also 
of  the  purchasers.     By  their  silence,  when  the  hammer 

{d)  Kemys  v.  Proctor,  3  Ves.  &  Bea.  57  ;  1  Jac.  &  Walk.  350 ; 
Kenworthy  r.  Schofield,  2  Barn.  &  Cress.  945 ;  4  Dowl.  &  R.  556. 

(e)  Vide  Supra. 

(/)  Emmerson  v.  Heelis,  2  Taunt.  38  ;  White  v.  Proctor,  4  Taunt. 
209. 

(g)  See  Wright  v.  Dannah,  2  Camp.  283. 

(/i)  Farebrother  v.  Simmons,  5  Barn.  &  Aid.  333. 

(i)  Bird  v.  Boulter,  1  Nev.  &  Mann.  313. 

(66)  See  Davis  v.    Robertson,  1    Rep.  Con.   Ct.   71.     M'Comb  v. 
Wright,  4  Johns,  Ch.  Rep.  659.     Cleaves  v.  Foss,  4  Greenl.  1. 
(*107) 


OF  PAROL  AGREEMENTS. 


125 


falls,  he  has  their  authority  to  execute  the  contract  on 
their  behalf.     It  was  not  necessary  to    overrule    Fare- 
brother  V.  Simmons  ;  but  the  opinion  of  the  Court  was  in 
favor  of  the  auctioneer's  power  to  sign  as  agent  of  the 
contracting  party.     It  is  certainly  irregular  that  the   con- 
tracting parties  should  act  as  each  other's   agents,  but  it 
(*)is  very  different  where   the  contract  is  signed  by  an 
individual  who  is  not  either  of  the   contractors.     Were  it 
to  be  held   otherwise,  no  broker  could  maintain  an  action 
in  his  own  name  for  the   breach  of  a  contract  signed  by 
him  ;  and   at  any  auction,  if  the  auctioneer  or  his  clerk 
were   not  allowed    to    be  the  agent  of   the  contracting 
parties  at  every  bidding,  each  purchaser  would  have  to 
come  to  the  table  and  sign  his  own  name. 
•    Finally,  a  contract  by  one  as  agent  for  another  is  valid 
under  the  statute,  although  the  alleged    agent    had    no 
authority  at  the  time,  provided  that  the  alleged  principal 
ajterwards  ratifies  the  contract(}'J. 


SECTION   III. 
Of  Parol  agreements  not  within  the  Statute. 


I.  We  have  seen  what  is  considered  a  sufficient  agree- 
ment to  take  a  case  out  of  the  statute ;  but  there  are 
cases  in  which  the  performance  of  an  agreement  will  be 
compelled,  although  the  terms  of  it  are  not  reduced  to 
writing :  for  though  the  statute  provided  that  no  agree- 
ment should  be  good,  unless  signed  by  the  party  to  be 
bound  thereby,  or  some  person  authorized  by  him,  yet  on 
all  the  questions  upon  that  statute,  the  purport  of  making 
it  has  been  considered,  viz.  to  prevent   frauds  and  per- 

( j)  Maclean  v.  Dunn,  4  Bingh.  722  ;   1  Moo.  &  P.  761. 

(*108) 


126  OF  PAROL  AGREEMENTS. 

juries  ;  and  where  there  has  appeared  to  be  no  danger  of 
either,  the  courts  have  endeavored  to  take  the  case  out 
of  the  statute(^). 

Upon  this  ground  it  was  that  in  the  case  of  Simon  v. 
Motivos,  Lord  Mansfield  and  Mr.  Justice  Wihnot  (*)ex- 
pressed  a  clear  opinion,  in  which  Mr.  Justice  Yates  was 
inclined  to  concur,  that  sales  by  auction  were  not  within 
the  statute,  because  the  solemnity  of  that  kind  of  sale 
precludes  all  peijury  as  to  the  fact  itself  of  sale.  The 
case,  however,  which  arose  upon  the  sale  of  goods,  was 
determined  upon  the  ground  of  the  constructive  agency 
of  the  auctioneer(/),  who  had  set  down  in  writing  the 
name  of  the  purchaser,  &c.(w). 

Succeeding  Judges  have  entertained  a  different  opinion 
on  the  great  question,  whether  sales  by  auction  are  within 
the  statute  of  frauds  ;  and  it  has  accordingly  been  since 
frequently  decided,  that  sales  by  auction  of  estates  are 
within  the  statute(w)(57).  And  although  the  point  has 
never    been  decided,  yet,  from  the  present  temper  of  the 

(k)  See  1  Ves.  221. 

(/)    Vide  supra. 

(m)  3  Burr.  1921  ;   Bull.  Ni.  Pri.  286  ;   1  Blackst.  599. 

(n)  Stansfield  v.  Johnson,  1  Esp.  Ca.  101  ;  Walker  v.  Constable,  2 
Esp.  Ca.  659 ;  1  Bos.  &  Pull.  306  ;  Buckmaster  v.  Harrop,  7  Ves. 
jun.  341,  affirmed  on  appeal,  Dec,  1806  ;  Blagdenv.  Bradbear,  12  Ves. 
jun.  466  ;  and  see  Coles  v.  Trecothick*,  9  Ves.  jun.  249  ;  Hinde  v. 
Whitehouse,  7  East,  658;  Mason  v.  Armitage,  13  Ves.  jun.  25;  Hig- 
genson  v.  Clowes,  15  Ves.  jun.  516.  The  case  of  Symonds  v.  Ball, 
8  Term  Rep.  151,  turned  on  the  particular  provisions  of  another  act  of 
parliament. 

(57)  Particulars  of  sale  of  lands,  advertised  to  be  sold  at  auction, 
signed  by  the  vendors,  held  to  be  a  sufficient  memorandum  in  writing, 
within  the  statute.     Hobby  v.  Finch,  Kirby,  14.  Ellsicorth,  J.  dissenting. 

In  the  state  of  JYeiv-York,  it  has  been  decided,  that  sales  of  estates, 
at  auction,  by  the  sheriff,  are  within  the  statute,  and  to  pass  the  estate, 
require  a  note  or  memorandum  in  writing.  Jackson  v.  Catlin,  2  Johns. 
Rep.  248.  S.  C.  affirmed  on  error,  8  Johns.  Rep.  406.  2d  edit.  Si- 
monds  v.  Catlin,  2  Caiiies'  Rep.  61,  64. 

(*109) 


OF  PAROL  AGREEMENTS. 


127 


courts,  it  seems  probable  that  it  will  be  determined,  that 
sales  by  auction,  even  of  goods,  are  within  the  statute(o). 

But  on  the  ground  that  there  is  no  danger  in  such  a 
transaction  of  either  fraud  or  peijury,  a  sale  before  a  Mas- 
ter, under  the  decree  of  a  court  of  equity,  will  be  carried 
into  execution,  although  the  purchaser  did  not  subscribe 
any  agreement.  The  judgment  of  the  Court,  in  confirm- 
ing the  purchase,  takes  it  out  of  the  statute (p) (58). 

So  if,  under  a  reference  to  a  Master,  an  agreement  be 
made  to  lay  out  trust-money  in  the  purchase  of  particular 
lands,  and  the  Master  make  his  report  accordingly,  and 
(*)the  report  be  confirmed  without  any  opposition  by  the 
owner  of  the  estate,  the  purchase  will  be  carried  into  a 
specific  execution,  although  no  agreement  was  signed  by 
the  vendor.  The  sale  is  a  judicial  sale,  which  takes  it 
entirely  out  of  the  statute(^)(59). 


II.  It  has  been  repeatedly  determined  in  equity(r), 
that  if  a  bill  be  brought  for  the  execution  of  an  agree- 
ment not  in  writing,  nor  so  stated  in  the  bill,  yet  if  the 
defendant  put  in  his  answer,  and  confess  the  agreement, 
that  takes  the  case  entirely  out  of  the  mischief  intended 

(o)  So  decided  in  Kenvvorthy  v.  Schofield,  2  Barn.  &  Cress.  945 ; 
4  Dowl.  &  R.  656. 

(p)  Attorney  General  r.  Day,  1  Yes.  218;  and  see  12  Ves.  jun. 
472. 

iq)    S.  C. 

(r)  Croyston  v.  Banes,  Prec.  Cha.  208  ;  and  see  1  Ves.  221,  441  ; 
Ambl.  586 ;  Mose.  370  ;  and  Symondson  v.  Tweed,  Prec.  Cha.  437  ; 
Gilb.  Eq.  Rep.  35  ;  Wanby  v.  Sawbridge,  1  Bro.  C.  C.  414,  cited. 

(68)  In  BoyUii's  Dev.  v.  Smith,  3  Munf.  102,  it  was  held,  that  a 
release  entered  by  verbal  direction,  in  open  Court,  was  valid,  and  satis- 
fied the  statute. 

(59)  In  relation  to  this  subject,  see  the  reasoning  of  KENT,  J.  in 
Simonds  v.  Catlin,  2  Caines'  Rep.  64. 

(*110) 


128 


OF  PAROL  AGREEMENTS. 


to  be  prevented  by  the  statute(60)  ;  and  there  being  no 
danger  of  peijurj,  the  Court  would  decree  it ;  and  if  the 
defendant  should  die,  upon  a  bill  of  revivor  against  his 
heir,  the  same  decree  would  be  made  as  if  the  ancestor 
were  living,  the  principle  going  throughout,  and  equally 
binding  the  representatives(5). 

Lord  Chancellor  Bathurst,  however,  held  that  an  agree- 
ment, not  in  part  performed,  could  not  be  carried  into 
execution,  although  confessed  by  the  answer.  In  Eyre  v. 
Popham(^),  addressing  himself  to  Mr.  Ambler,  he  asked 
if  there  was  any  case  in  which  there  had  been  a  decree 
founded  upon  a  confession  generally  without  a  part  per- 
formed ?  and  Mr.  Ambler  replied,  that  in  some  of  the 
cases,  the  Chancellor  had  been  mentioned  to  have  said  it, 
but  he  never  found  a  decree.  In  giving  judgment,  his 
Lordship  is  reported  to  have  said,  "  This  is  not  an  agree- 
ment in  writing,  upon  the  statute  of  frauds ;  but  the 
question  is,  whether  it  is  an  agreement  which  so  appears 
as  that  the  Court  will  decree  a  performance.  It  has  been 
(*)said,  that  it  is  a  known  rule  in  this  Court,  that  where 
an  agreement  appears  confessed,  the  Court  will  decree  a 
performance,  though  no  part  has  been  performed  :  some 
dictums  there  have  been,  but  Mr.  Ambler  confesses  that 
he  has  found  no  decree — that  where  the  substance  clearly 
appears,  though  in  parol,  without  any  part  performed,  the 
Court  will  decree  an  agreement  to  be  executed.  I  think 
it  cannot  be  possible  ;  this  Court  cannot  repeal  the  statute 
of  frauds,  or  any  statute.  The  King  has  no  such  power, 
by  the  constitution,  intrusted  to  him ;  and  therefore  there 

(«)   Per  Lord  Hardwicke,  see  1  Ves.  221. 

(0  Lofft,  808,  809 ;  and  see  Eyre  v.  Iveson,  2  Bro.  C.  C.  563, 
cited. 

(60)  See  Smith  v.  Brailsford,  1  Des.  350.  Kerr  v.  Love,  1  Wash. 
172.  Fowler  v.  Lewis,  3  Marsh.  Ken.  Rep.  445.  See  contra,  Thompson 
V.  Tod,  1  Peters'  Rep.  388. 

(*111) 


OF  PAROL  AGREEMENTS. 


129 


can  be  no  such  power  in  his  delegates.  The  only  case 
f  know  that  takes  a  contract  out  of  the  statute  is  of  fraud, 
and  the  jurisdiction  of  this  Court  is  principally  intended 
to  prevent  fraud  and  deceit.  Where  a  party  has  given 
ground  to  another  to  think  he  had  a  title  secured,  the 
Court  will  secure  it  to  him.  The  ground,  therefore,  in 
making  and  refusing  decrees,  has  been  fraud.  It  can 
never  be  laid  down  by  the  Court,  that  where  the  sub- 
stance appears  it  shall  be  executed.  It  would  not  have 
been  so  at  common  law." 

In  the  discussion  of  the  foregoing  case,  neither  the  bar 
nor  the  court  appear  to  have  been  aware  of  a  case  before 
Lord  Chancellor  Macclesfield(?f),  in  which  the  defendant 
having  pleaded  the  statute  of  frauds  to  a  bill  seeking 
a  specific  performance  of  a  parol  agreement,  his  Lordship 
said,  the  plea  was  proper,  but  then  the  defendant  ought, 
by  answer,  to  deny  the  agreement ;  for  if  he  confessed 
the  agreement,  the  Court  would  decree  a  performance, 
notwithstanding  the  statute ;  for  that  such  confession  would 
not  be  looked  upon  as  perjury,  or  intended  to  be  pre- 
vented by  the  statute.  And  he  therefore  confirmed  an 
order,  that  the  plea  should  stand  for  an  answer,  with 
(*)liberty  for  the  plaintiff  to  except  thereto,  and  that  the 
benefit  thereofshould.be  saved  to  the  defendant  until  the 
hearing  of  a  cause.  And  Lord  Hardwicke  appears  to 
have  entertained  the  same  opinion(a:)(61). 

In   Whitchurch    v.    Bevis(?/),    Lord    Thurlow  at  first 

(«)  Child  V.  Godolphin,  1  Dick.  39  ;  2  Bro.  C.  C.  566,  cited  ;  and 
See  Hartley  v.  Wilkinson,  Irish  Term  Rep.  357. 

(x)  See  Cottington  v.  Fletcher,  2  Atk.  155  ;  and  see  3  Atk.  3 ;  but 
Bee  4  Ves.  jun.  24. 

(t/)   2  Bro.  C.  C.  559 ;   2  Dick.  G64. 

(6 1 )  Smith  V.  Brailsford,  1  Des.  350.  In  this  case  the  defendant 
admitted  by  his  answer,  that  he  had  taken  possession  of,  and  held  the 
land  under  the  agreement. 

VOL.  I.  17  (*112) 


130 


OF  PAROL  AGREEMENTS. 


expressed  his  opinion,  that  the  only  effect  of  the  statute 
was,  that  an  agreement  should  not  be  proved  aliunde.  No 
evidence  that  could  be  given  would  sustain  the  suit  if  the 
defendant  answered  and  denied  the^agreement.  In  this 
case  the  agreement  was  confessed,  but  the  statute  was 
pleaded,  and  it  was  ultimately  decided  on  its  own  partic- 
ular circumstances.  Lord  Thurlow  said,  he  meant  to 
determine  upon  the  ground  of  this  particular  case  ;  be- 
cause it  might  become  to  be  more  seriously  considered 
what  sort  of  a  verbal  agreement,  notwithstanding  the  plea 
of  the  statute  of  frauds,  might  be  sustained,  as  being 
confessed  by  the  answer,  so  as  the  Court  would  carry  it 
into  execution.  His  Lordship  added,  that  he  was  pre- 
pared to  say,  if  there  were  general  instructions  for  an 
agreement,  consisting  of  material  circumstances  to  be 
hereafter  extended  more  at  large,  and  to  be  put  into  the 
form  of  an  instrument,  with  a  view  to  be  signed  by  the 
parties,  and  no  fraud,  but  the  party  takes  advantage  of 
the  locus  poenitentice,  he  should  not  be  compelled  to  per- 
form such  an  agreement  as  that,  ivhen  he  insists  upon  the 
statute  of  frauds. 

It  is  curious  to  observe  the  different  opinions  which 
have  prevailed  on  this  point.  Lord  Macclesfield  held, 
that  if  the  agreement  was  confessed,  even  a  plea  of  the 
statute  would  not  protect  the  defendant ;  in  which  opinion 
he  seems  to  have  been  followed  by  Lord  Hardwicke.  On 
the  other  hand.  Lord  Bathurst  thought  that,  unless  there 
(*)were  fraud,  an  admission  of  the  agreement  by  the  defen- 
dant would  not  enable  the  Court  to  decree  it,  although  the 
defendant  did  not  insist  on  the  statute.  Lord  Thurlow 
appears  to  have  been  of  opinion,  that  if  the  agreement 
was  admitted,  the  statute  could  only  be  used  as  a  defence 
where  there  was  a  clear  locus  poenitentice,  but  that  evidence 
could  not  be  admitted  to  falsify  the  defendant's  answer. 

None   of  the    foregoing   opinions  has,  however,  been 
attended  to.     Mr.  Baron  Eyre  seems  to  have  led  the  way 

(*113) 


OF  PAROL  AGREEMENTS.  |Q| 

ill  holding,  that  if  the  defendant,  by  his  answer,  insisted 
upon  the  statute  of  frauds,  a  specific  performance  could 
not  be  decreed,  although  he  confessed  the  agreement (2:). 
And  Lord  Thurlow,  notwithstanding  his  opinion  in  Whit- 
church V.  Be  vis,  said,  in  the  prior  case  of  Whitbread  v. 
Brockhurst,  that  it-  should  rather  seem  that  if  the  defen- 
dant confesses  the  agreement  in  his  answer,  but  insists 
upon  the  statute,  it  would  be  more  simple  and  conform- 
able to  reason  to  say,  that  the  statute  should  be  a  bar  to 
the  plaintiff's  claini(«)  ;  and  these  opinions  have  been 
adopted  by  Lord  Rosslyn  and  Lord  Eldon(6) ;  and  Sir 
William  Grant  actually  decided,  that  the  statute  may  be 
used  as  a  bar  to  the  relief,  although  the  agreement  be 
admitted(c).  It  is  immaterial,  he  said,  what  admissions 
are  made  by  a  defendant  insisting  upon  the  benefit  of  the 
statute,  for  he  throws  it  upon  the  plaintiff'  to  show  a  com- 
plete written  agreement ;  and  it  can  no  more  be  thrown 
upon  the  defendant  to  supply  defects  in  the  agreement, 
than  to  supply  the  want  of  an  agreement(62). 

(2)  Stewart  v.  Careless,  2  Bro.  C.  €.  564,  565,  cited ;  Walters  v. 
Morgan,  2  Cox,  369. 

(a)  See  1  Bro.  C.  C.  416. 

{b)  Moore  v.  Edwards,  4  Yes.  jun.  23  ;  Cooth  v.  Jackson,  6  Ves. 
jun.  12  ;  Row  v.  Teed,  15  Ves.  jun.  375  ;  see  Rondeau  v.  Wyatt,  2  II. 
Blackst.  63  ;  and  1  Rose,  300. 

(c)  Blagden  v.  Bradbear,  12  Yes.  jun.  464  ;  see  also  2  Ball  &  Beat. 
349. 

(62)  Judicial  opinions,  as  to  the  effect  or  necessity  of  an  answer,  on 
a  bill  for  the  specific  performance  of  a  parol  agreement  for  the  sale  of 
lands,  admitting  or  denying  the  agreement,  have  been  almost  as  diversi- 
fied in  the  United  States,  as  in  England.  In  Virginia,  it  has  been  de- 
termined, that  if  the  defendant  by  his  answer  admit,  that  certain  goods 
were  to  be  charged  to  him,  upon  certain  conditions,  there  being  no  other 
evidence  in  the  case,  such  admission  ought  to  be  the  rule  by  which  the 
charge  should  be  regulated.  Kerr  v.  Love,  1  Wash.  172.  In  Pennsijl- 
vania,  it  seems  to  be  the  settled  rule,  that  although  the  defendant  an- 
swer, and  admit  the  agreement  as  stated  in  the  bill,  he  may,  neverthe- 


lOQ  ^^  PAROL  AGUEE.MENTS. 

Where,  however,  a  defendant  has,  by  answer,  admitted 
(*)the  agreement,  and  submitted  to  perform  it,  he  cannot, 
by  an  answer  to  an  amended  bill,  plead  the  statute  of 
fraud  s(</). 

If  the  defendant  deny  the  agreement,  he  may  be  tried 
for  peijury ;  but  a  conviction  will  not  enable  equity  to 
decree  a  performance  of  the  agreement(e)(I)  ;  and  there- 
fore, as  the  plaintiff  cannot  avail  himself  in  any  civil 
proceedings  of  the  conviction  of  the  defendant,  he  is  a 
competent  witness  to  prove  the  perjury(/^. 

III.  There  are  other  cases  taken  out  of  the  statute,  not 
so  much  on  the  principle  of  no  danger  of  peijury,  as  that 
the  statute  was  not  intended  to  create  or  protect  fraud. 
Lord  Keeper  North  appears  to  have  entertained  a  floating 

(c/)  Spurrier  v.  Fitzgerald,  6  Ves.  jun.  648. 

(e)  Barllelt  r.  PickersgiU,  4  Burr,  2265  ;  4  East,  677,  n.  (6)  ;  1 
Cox,  16.  See  Rastel  v.  Hutchinson,  1  Dick.  44,  and  Fell  v.  Cham- 
berlain, 2  Dick.  484  ;   Burdon  i".  Browning,  2  Taunt.  620. 

(/)  The  King  v.  Boston,  4  East,  572. 

(I)  It  appears  that  the  plaintiff  in  Fell  v.  Chamberlain  did  prefer  a  bill 
of  indictment  for  perjury  against  the  defendant ;  and  the  Master  of  the 
Rolls  granted  an  order  to  the  six  clerks  to  deliver  the  bill  and  answer, 
interrogatories,  and  depositions  of  witnesses  to  a  solicitor,  in  order  to 
be  produced  at  the  trial.     Reg.  Lib.  A.  1772,  fo.  496. 

less,  protect  himself  against  the  performance  of  it,  by  pleading  the  stat- 
ute. Thompson  v.  Tod,  1  Peters'  Rep.  388.  In  South  Carolina,  the 
contrary  rule  has  been  adopted.  Smith  v.  Brailsford,  1  Des.  350.  On 
a  bill  for  a  specific  performance  of  a  parol  agreement  for  the  sale  of 
lands,  in  a  case  not  tinctured  with  fraud,  if  the  defendant  chooses  to 
avail  himself  of  the  statute,  he  need  not,  by  his  answer,  admit  or  deny 
the  agreement,  the  law  having  declared  it  void.  Givens  v.  Calder,  2 
Des.  171,  190.  See  Argenbrightv.  Campbell,  3  Hen.  &  Munf.  144, 
153,  160,  161.  Grant  v.  Craigmiles,  1  Bibb,  203.  And  in  Kemtuchy, 
it  has  been  held,  that  although  the  defendant  omit  to  plead  the  statute  of 
frauds,  a  specific  peformance  will  not  be  decreed,  unless  he  confess  the 
agreement,  Foivler  v.  Lticis,  3  Marsh.  Ken.  Rep.  445. 
(,*114; 


OF  PAROL  AGREEMENTS. 


133 


opinion,  although  he  never  actually  decided  the  point, 
that  if  the  plaintiff  laid  in  his  bill  that  it  was  part  of  the 
agreement  that  the  agreement  should  be  put  into  writing, 
it  would  take  the  case  out  of  the  statute(^).  In  a  case 
before  Lord  Thurlow(A),  this  doctrine  was  stated  at  the 
bar  ;  and  in  answer  to  it,  his  Lordship  said,  he  took  that 
to  be  a  single  case,  and  to  have  been  overruled.  If  you 
inte?pose  the  medium  of  fraud,  by  ichich  the  agreement  is 
prevented  from  being  put  into  writing  I  agree  to  it,  other- 
wise (*)I  take  Lord  North's  doctrine,  '  that  if  it  had  been 
laid  in  the  bill,  that  it  was  a  part  of  the  agreement  that 
it  should  be  put  into  writing,  it  would  have  done,'  to  be 
a  single  decision,  and  contradicted,  though  not  expressly, 
yet  by  the  current  of  opinions. "(63) 

So  where  agreements  have  been  carried  partly  into 
execution,  the  Court  will  decree  the  performance  of  them, 
in  order  that  one  side  may  not  take  advantage  of  the 
statute,  to  be  guilty  of  fraud(2)(I)(64). 

{g)  Hollis  V.  Whiting,  or  Edwards,  1  Vein.  151,  159  ;  Leake  v. 
Morrice,  2  Cha.  Ca.  135. 

(/i)  Whitchurch  v.  Bevis,  2  Bro.  C.  C.  665. 

(t)    See  1  Yes.  221  ;  Taylor  v.  Beech,  1  Yes.  297. 

(I)  The  ground  of  relief  in  these  cases  is  fraud,  and  that  species  of 
fraud  which  is  conusable  in  equity  only  ;  although  it  seems  that  the 
Court  of  King's  Bench  once  held,  that  where  an  agreement  was  partly 
executed,  it  was  totally  out  of  the  statute.     See  1  Bro.  C.  C.  417. 

(63)  See  Dandridge  v.  Harris,  1  Wash.  326. 

(64)  See  JViven  v,  Belknap,  2  Johns.  Rep.  573,  587.  Smith  v.  Pal- 
tori's  Les.  1  Serg.  &  Rawie,  SO.  Wclmorc  v.  While,  2  Caines'  Cas. 
in  Error,  87.  Billinglon  \:  Welsh,  5  B'lnn.  129,  131.  The  contract, 
as  laid  in  the  bill,  must  be  made  out  by  clear  and  satisfactory  proof; 
and  the  act  of  part  perfortpance  must  refer  to  the  identical  contract  set 
up  ;  it  must  be  unequivocal ;  a  reference  to  some  agreement  is  not  suf- 
ficient. Phillips  V.  Thompson,  1  Johns.  Ch.  Rep.  131.  Parkhurst  v. 
Van  Corllandt,  1  Johns.  Ch.  Rep.  273.  In  certain  cases,  where,  by 
the  rules  of  law,  a  court  of  equity  is  not  warranted  in  decreeing  the  ex- 

(*il5) 


134 


OF  PAROL  AGREEMENTS. 


An  agreement  will  not  be  considered  as  partly  ex- 
ecuted, unless  the  acts  done  are  such  as  could  be  done 
with  no  other  view  or  design  than  to  perform  the  agree- 
ment ;  or  perhaps,  to  speak  more  correctly,  with  the  view 
of  the  agreement  being  performed  ;  and  if  it  do  not  ap- 
pear but  the  acts  done  might  have  been  done  with  other 
views,  the  agreement  will  not  be  taken  out  of  the 
statute(A:). 

Neither  will  acts  merely  introductory,  or  ancillary  to 

(k)  Gunter  v.  Halsey,  Ambl.  686  ;  Lacon  v.  Mertins,  3  Atk.  1  ; 
and  see  19  Ves.  jun.  479. 

edition,  of  a  contract  in  specie,  a  compensation  will  be  awarded  to  the 
party  injured  by  the  non-performance  of  the  agreement.  As  where,  by 
mistake,  the  defendant  was  unable  to  perform  his  contract,  which  was 
for  the  sale  of  land.  JWFermn  v.  Taylor,  3  Cranch,  270,  281.  See 
Hepburn  v.  Auld,  5  Cranch,  262.  Pratt  v.  Laio,  9  Cranch,  456.  So 
also,  where  a  party  has  sustained  an  injury  by  the  non-performance  of 
a  contract  within  the  statute  of  frauds,  for  which  he  ought  to  be  com- 
pensated, and  for  which  he  has  no  remedy,  or,  at  best,  a  doubtful  and 
inadequate  one,  at  law,  an  issue  of  quantum  damnificatus  will  be  award- 
ed. Phillips  V.  Thompson,  1  Johns.  Ch.  Rep.  131.  So,  a  reasonable 
compensation  will  be  afforded  to  a  party,  who  has  entered  into  posses- 
sion of  lands,  and  made  beneficial  and  lasting  improvements,  under  an 
imperfect  agreement,  either  to  purchase,  or  take  a  lease  of  them.  Park- 
hurst  V.  Van  Corllandt,  1  Johns.  Ch.  Rep.  273.  But  see  S.  C.  on  ap- 
peal, 14  Johns.  Rep.  15.  contra;  the  Court  of  Errors  decreed  a  speci- 
fic performance  of  the  agreement.  See  Sherburn  v.  Fuller,  5  Mass. 
Rep.  133,  138.  as  to  the  recovery  of  money  when  the  contract  is  re- 
scinded. Under  the  act  of  Pennsylvania,  "  for  the  prevention  of  frauds 
and  perjuries,"  a  parol  agreement  for  the  sale  of  lands,  is  not  void  ;  but 
the  act  restricts  the  operation  of  the  agreement,  so  far,  that  no  title  can 
be  derived  by  virtue  of  it ;  yet  an  action  will  lie  to[recover  damages  for 
the  non-performance  of  such  an  agreement :  Bell  v.  Jindreios,  4  Dall. 
152.     See  Ewing  v.  Tees,  1  Binn.  450. 

Where  a  contract  relating  to  an  interest  ia  lands,  has  been  executed 
by  one  party,  it  may  be  proved  by  parol  evidence  ;  and  a  court  of  equity 
will  either  decree  a  specific  performance,  or  a  return  of  the  money  ex- 
pended, as  the  equity  of  the  case  may  require.  Cady  v.  CadivcU,  5 
Day,  16. 

(*116) 


OF  PAROL  AGREEMENTS. 


135 


an  agreement,  be  considered  as  a  part-performance,  al- 
though attended  with  expense.  Therefore,  delivering  an 
abstract,  giving  directions  for  conveyances,  going  to  view 
the  estate,  fixing  upon  an  appraiser  to  value  stock,  mak- 
ing valuations,  &c.(/),  will  not  take  a  parol  agreement 
out  of  the  statute(65). 

(*)But  if  possession  be  delivered  by  the  purchaser,  the 
agreement  will  be  considered  as  in  part  executed(w) (66)  ; 

(/)  Clerk  V.  Wright,  1  Atk.  12  ;  Whitbread  v.  Brockhurst,  1  Bro.  C. 
C.  412  ;  Cole  v.  White,  1  Bro.  C.  C.  409,  cited  ;  Whitchurch  v.  Be- 
vis,  2  Bro.  C.  C.  659  ;  Whaley  r.  Bagenal,  6  Bro.  P.  C.  645  ;  Cooke 
V.  Tombs,  2  Anst.  420  ;  and  see  Cooth  v.  Jackson,  6  Ves.  jun.  12  ; 
and  Redding  v.  Wilkes,  3  Bro.  C.  C.  400. 

(m)  Butcher  i'.  Stapely,  1  Vern.  363  ;  Pyke  v.  WilHams,  2  Vern. 
465;  Lockey  v.  Lockey,  Prec.  Cha.  518;  Earl  of  Aylesford's  case, 
2  Stra.  783  ;  Binstead  r.  Coleman,  Bunb.  65 ;  S.  C.  MS.  in  tol  ver- 
bis ;  Barrett  v.  Gomesena,  Bunb.  94  ;  Lacon  v.  Mertins,  3  Atk.  1 ; 
Wills  I'.  Stradling,  3  Ves.  jun.  378  ;  Bowers  v.  Cator,  4  Ves.  jun.  91  ; 
Denton  v.  Stewart,  4th  July  1786,  cited  in  Mr.  Fonbl.  note  to  1  Trea. 
Eq.  175  (I)  ;  Gregory  v.  Mighell,  18  Ves.  jun.  328  ;  Kine  v.  Balfe,  2 
Ball  &  Beat.  343  ;  Morphett  v.  Jones,  Rolls,  Feb.  1818,  MS. ;  1 
Swanst.  172. 

(I)  In  this  case  the  plaintiff  not  only  purchased  the  house,  but  also 
the  furniture,  for  which  she  had  actually  paid  ;  and  it  appears  by  the 
decree,  that  there  was  a  receipt  given  by  the  defendant,  the  contents  of 
which,  however,  are  not  stated  in  the  Registrar's  book.  The  defendant 
positively  denied  the  agreement,  and  insisted  that  the  plaintiff  was  only 
tenant  at  will.  Reg.  Lib.  A.  1785,  fo.  552,  by  the  name  of  Denton  v. 
Seward  ;  ibid.  717,  by  the  name  of  Denton  v.  Stewart. 

(65)  See  Jonca  v.  Peterman,  3  Serg.  &  Rawle,  546.  JYiven  v.  Bel- 
knap, ut  supra.  Davenport  v.  JSlason,  15  Mass.  Rep.  85.  Bassler  v. 
JViesly,  2  Serg.  &  Rawle,  355.  Phillips  v.  Thompson,  1  Johns.  Ch. 
Rep.  131.  Parkhurst  v.  Corllandl,  1  Johns.  Ch.  Rep.  273.  Givens 
V.  Calder,  2  Des.  171. 

(66)  See  Wctmore  v.  White,  2  Caines'  Cas.  in  Error,  87.  [Contra, 
at  law,  per  KENT,  Ch.  J.  Jackson  v.  Pierce,  2  Johns.  Rep.  221. 
See  Davenport  v.  JMason,  15  Mass.  Rep.  92.]  Syler^s  Les.  v.  Eckhart, 
1  Binn.  378.  Billinglon's  Les.  v.  fVelsh,  5  Binn.  129,  131.  Smith  v. 
Patlon^s  Les.  1  Serg.  &  Rawle,  80.  Bassler  v.  JYiesly,  2  Serg.  &  Rawle, 

(*116) 


136 


OF  PAROL  AGREEMENTS. 


especially  if  he  expend  money  in  building  or  improving 
according  to  the  agreement(n)(67),  for  the  statute  should 
never  be  so  turned,  construed,  or  used,  as  to  protect  or  be 
a  mean  of  fraud (o). 

Possession,  however,  must  be  delivered  in  part-perform- 
ance ;  for  if  the  purchaser  obtain  it  wrongfully,  it  will 
not  avail  him(p)(6S).  And  a  possession  which  can  be 
referred  to  a  title  distinct  from  the  agreement  will  not 
take  a  case  out  of  the  statute.  Therefore,  possession  by 
a  tenant  cannot  be  deemed  a  part-performance.  The 
delivery  of  possession,  by  a  person  having  possession,  to 
the  person  claiming  under  the  agreement,  is  a  strong 
and  marked  circumstance ;  but  a  tenant  of  course  con- 
tinues in  possession,  unless  he  has  notice  to  quit ;  and 
(*)the  mere  fact  of  his  continuance  in  possession  (which 
is  all  that  can  be  admitted,  for  quo  animo  he  continued  in 
possession,  is  not  a  subject  of  admission)  cannot  weigh 
with  the  Court(9)(69). 

(n)  Foxcraft  v.  Lister,  2  Vern.  456  ;  Gilb.  Eq.  Rep.  4,  cited  ;  Col- 
les  P.  C.  108,  reported;  Floyd  v.  Buckland,  2  Freem.  268;  Mortimer 
V.  Orchard,  2  Ves.  jun.  243;  Toole  v.  Medlicott,  1  Ball  &  Beatty»  393. 
See  Wheeler  v.  D'Esterre,  2  Dow,  359  ;  and  see  19  Yes.  jun.  479. 

(o)   See  3  Burr.  1919. 

(p)  Cole  V.  White,  1  Bro.  C.    C.  409,  cited. 

{q)  Wills  V.  Stradling,  3  Ves.  jun.  378  ;  Smith  v.  Turner,  Free.  Cha. 
561.  cited  ;   Savage  v.  Carrol,  1  Ball  &  Beatty,  265. 

365.  Jones  v.  Peterman,  3  Serg.  &  Rawle,  546.  Fox  v.  Longlijy  1 
Marsh.  Ken.  Rep.  388.  Downey  v.  Hotclikiss,  2  Day,  225.  Ehert 
V.  Wood,  1  Binn.  216.  Smith  v.  Brails  ford,  1- Des,  350.  Kiven  v. 
Belknap,  2  Johns.  Rep.  573.  587.  Parkkurst  v.  Van  Cortlandt,  1 
Johns.  Ch.  Rep.    273.   S.  C.  on  appeal,  14  Johns.  Rep.  15. 

(67)  See  the  following  cases,  inserted  in  the  preceding  note. 
Welmore  v.  White  ;  Syler^s  Les.  v.  Eckhart ;  Smith  v.  Paiton's  Les. ; 
Jones  V.  Petennan  ;  Doivney  v.  Hotchkiss  ;  Fox  v.  Longly  ;  JViven  v. 
Belknap  ;   Parhhursl  v.  Van  Cortlandt. 

(68)  See  Givens  v.  Calder,2  Des.  171. 

(69)  See  Parkhurst  v.  Van  Cortlandt,  14  Johns.  Rep.  15.  on  appeal. 
(*117) 


OF  PAROL  AGREEMENTS.  j^'^ 

But  if  he  pay  an  additional  rent,  although  that  is  per  se 
an  equivocal  circumstance  (for  it  may  be  that  he  shall 
hold  only  from  year  to  year,  the  lease  being  expired),  yet 
there  may  be  other  inducements.  If,  therefore,  it  be 
averred  that  the  landlord  accepted  the  additional  rent 
upon  the  foot  of  the  agreement,  the  acceptance  upon  the 
ground  of  the  agreement  will  not  be  equivocal  at  all. 
The  landlord,  in  such  a  case,  must  answer  whether  it  was 
accepted  upon  a  holding  from  year  to  year,  or  any  other 
ground  (r). 

If  it  be  part  of  such  a  contract  with  a  tenant  in  posses^ 
sion,  that  money  shall  be  laid  out,  and  it  is  one  of  the 
considerations  for  granting  the  lease  (the  laying  out  which 
must  be  then  with  the  privity  of  the  landlord),  it  is  very 
strong  to  take  it  out  of  the  statute(5).  But  it  is  necessary 
that  the  act  should  unequivocally  refer  to  and  result  from 
thte  agreement,  and  such  that  the  party  would  suffer  an 
injury  amounting  to  fraud,  by  the  refusal  to  execute  that 
agreement.  Therefore,  where  upon  the  faith  of  a  promise 
of  a  renewal,  a  tenant  rebuilt  a  party-wall,  the  agreement 
was  held  to  be  within  the  statute.  The  act  done  was 
equivocal :  for  it  would  have  taken  place  equally  if  there 
had  been  no  agreement :  it  was  such  also  as  easily 
admitted  of  compensation,  without  executing  the  agree- 
ment. The  money  expended  might  be  recovered  from 
the  landlord,  if  it  was  by  the  landlord  that  the  expense 
was  to  be  born e(/) (70). 

(*)In  a  late  case,  Lord  Redesdale  thought  that  it  was 
absolutely  necessary  for  courts  of  equity  in  these  cases,  to 

(r)  Wills  I'.  Stradling,  ubi  sup. 
(s)  S.  C. 

(/)  Frame  v.  Dawson,  14  Vcs.  jun.   386.     Sec   Lindsay  v.    Lynch, 
2  Scho.  &  Lef.   1  ;   O'Reilly  v.  Thompson,  2  Cox,  271. 

(70)  See  Philips  v.  Thompson,  1  Johns.  Ch.  Rep.  149,  150. 
VOL.   I.  18  (*11S) 


1  og  OF  PAROL  AGREEMENTS. 

make  a  stand,  and  not  carry  the  decisions  farther(w)(71). 


It  is  generally  understood,  that  payment  of  a  substantial 
part  of  the  purchase-money  will  take  a  parol  agreement 
out  of  the  statute.  How  far  this  opinion  is  well  founded ^ 
appears  to  be  deserving  of  particular  consideration(72). 

There  are  four  cases  in  Tothill,  which  arose  previously 

(u)  See  2  Scho.  &  Lef.  6, 

(71)  Accordant,  Philips  v.  Thompson,  ut  supra,  per  KENT.  Grant 
y.  JVay/or,  4  C ranch,  234.  King  \.  Riddle,  7  Cranch,  171.  and  C/e- 
mentson  v.  Williams,  8  Cranch,  74.  per  MARSHALL,  Ch.  J. 

In  the  later  case  of  Kidder  v.  Hunt,  1  Pick.  328,  which  was  assump- 
sit on  the  contract  itself,  setting  forth  the  verbal  agreement,  which  was 
for  the  lease  of  certain  premises  for  five  years,  yielding  and  paying 
rent  therefor,  making  repairs,  &c, ;  whereupon  the  plaintiiT  entered  into 
possession  and  expended  money.  Upon  demurrer  to  the  plea  of  the 
statute  of  frauds  pleaded  by  the  defendant,  the  court  held  the  plea  good. 
The  ground  of  this  decision  was,  that  the  contract  related  to  an  interest 
in  land  and  not  being  in  writing,  no  action  according  to  the  statute 
could  be  maintained  on  such  a  contract.  But  "  certainly  so  much  as 
has  been  expended  by  the  plaintiff  in  money,  or  labor,  may  be  recov- 
ered in  an  action  for  money  paid,  or  for  work  done  for  the  defendant. 
There  are  no  doubt,  cases  proper  for  a  court  of  chancery,  such  as  those 
which  relate  to  the  execution  of  trusts,  where  the  common  law  will  give 
a  remedy  by  an  action  of  damages  ;  and  perhaps  in  a  parol  contract 
respecting  land  ;  where  the  party  has  been  put  to  expense,  as  to  his 
part  of  the  contract,  under  circumstances  which  would  amount  to  fraud 
by  the  other  party,  case  might  lie  for  damages  for  the  fraud  as  was  inti- 
mated in  Boyd  v.  Stone,  11  Mass.  342  ;  but  this  action  is  brought  upon 
the  contract  itself,  and  to  sustain  it  would  be  indirectly  to  give  efficacy 
to  a  contract  which  the  legislature  says  shall  have  none.  It  is  on  the 
ground  of  fraud  only  that  the  court  of  chancery  undertakes  to  decree 
performance  of  such  a  contract."  Vide  Crocker  v.  Higgins,  7  Conn. 
342  ;  Jones  v.  Peterman,  3  S.  &  R.  645  ;  Harris  v.  Knickerbacker, 
6  Wend.  636. 

(72)  See  Wetmore  v.  White,  2  Caines'  Cas.  in  Error,  87.  Billing- 
ton  v.  Welsh,  6  Binn.  131.  Smith  v.  Palton's  Les.  1  Serg.  &  Rawle, 
80.  Bassler  v.  JViesly,  2  Serg.  &  Rawle,  356.  Thompson  v.  Tod,  1 
Peters'  Rep.  388.    Jackson  v.  Cutrighf,  6  Munf.  308. 


i 


OF  PAROL  AGREEMENTS. 


139 


to  the  statute  of  frauds,  and  appear  to  be  applicable  to 
the  point  under  consideration;  for  equity,  even  before 
the  statute  of  frauds,  would  not  execute  a  mere  parol 
agreement  not  in  part  performed.  In  the  first  case  (x), 
which  was  heard  in  the  38th  of  Eliz.  relief  was  denied, 
^'  because  it  was  but  a  preparation  for  an  action  upon  the 
^'  case."  In  the  two  next  cases(7/),  which  came  on  in  the 
9th  of  Jac.  I.,  parol  agreements  were  enforced,  apparently 
on  account  of  the  payment  of  very  trifling  parts  of  the 
purchase-money,  but  the  particular  circumstances  of  these 
cases  do  not  appear.  The  last  case  reported  in  Tothill(2), 
was  decided  in  the  30th  of  Jac.  I.,  and  the  facts  are  dis- 
tinctly stated.  The  bill  was  to  be  relieved  concerning 
a  promise  to  assure  land  of  inheritance,  of  which  there 
had  not  been  any  execution,  but  only  55s.  paid  in  hand, 
and  the  bill  was  dismissed.  This  point  received  a  similar 
determination,  in  the  next  case  on  the  subject  before  the 
statute,  which  is  reported  in  Cha.  Rep. (a),  and  was  de- 
termined in  the  15th  Cha.  II.  So  the  same  doctrine  was 
adhered  to  in  a  case  which  occurred  three  years  after- 
wards,(*)  and  is  reported  in  Freeman(^)  ;  for  although 
a  parol  agreement  for  a  house,  with  20s.  paid,  was  de- 
creed without  further  execution  proved,  yet  it  appears  by 
the  judgment,  that  the  relief  would  not  have  been  granted 
if  the  defendant,  the  vendor,  had  demurred  to  the  bill, 
which  he  had  neglected  to  do,  but  had  proceeded  to  proof. 
The  last  case  I  have  met  with  previously  to  the  statute, 
was  decided  in  the  21st  Car.  II. (c),  and  there  a  parol 
agreement,  upon  which  only  205.  were  paid,  was  carried 
into  a  specific  execution.     This  case  probably  turned,  like 

(j?)  William  v.  Nevil,  Toth.  135. 

(y)  Feme  v.  Bullock,  Tolh.  206  ;  Clark  v.  TIackwell,  ibid.  228. 

(z)  Miller  v.  Blanciist,  Toth.  85. 

(«)  Simmons  v.  Cornelius,  1  Cha.  Rep.  128. 

(h)  Anon.  2  Frecm.  128. 

{£)  VoH  v.  Smith,  3  Cha.  Rep.  10. 

(*n9) 


I 
I4Q  OF  PAROL  AGREEMENTS. 

the  one  immediately  preceding  it,  on  the  neglect  of  the 
defendants  to  demur  to  the  bill.  It  must  be  admitted, 
that  the  foregoing  decisions  are  not  easily  reconcileable, 
yet  the  result  of  them  clearly  is,  that  payment  of  a  trifling 
part  of  the  purchase-money  was  not  a  part-performance 
of  a  parol  agreement.  Whether  payment  of  a  consider- 
able sum  would  have  availed  a  purchaser,  does  not  appear. 
In  Toth.  67,  a  case  is  thus  stated  :  "  Moyl  v.  Home,  by 
reason  200/.  was  deposited  towards  payment,  decreed." 
This  case  may,  perhaps,  be  deemed  an  authority  that, 
prior  to  the  statute,  the  payment  of  a  substantial  part  of 
the  purchase- money  would  have  enabled  equity  to  speci- 
fically perform  a  parol  agreement ;  but  it  certainly  is  too 
vague  to  be  relied  on. 

Our  attention  is  now  called  to  the  statute  itself.  The 
clause  relating  to  lands  declares  generally,  that  no  con- 
tract, not  in  writing,  shall  be  binding  ;  there  is  also  a 
clause  in  the  act,  which  relates  to  sales  of  goods,  which 
are  declared  to  be  binding  if  something  is  given  in 
earnest  to  bind  the  bargain. 

The  first  case  in  the  books,  subsequently  to  the  statute, 
is  in  Freem.(f/),  where  it  is  stated,  that  a  contract  for  land, 
(*)and  a  great  part  of  the  money  paid,  is  void  since  the 
statute  of  frauds  and  perjuries;  but  the  party  that  paid 
the  money  may,  in  equity(I),  recover  back  the  money (7 3). 

(d)  1  Freem.  486.  ca.  664.  b. 

(1)  At  this  day  it  may  be  recovered  at  law. 

(73)  At  this  day  it  may  be  recovered  at  law.  [See  GiKet  v.  J]Iaijnard, 
6  Johns.  Rep.  85;  Sherburne  v.  Fuller,  5  Mass.  Rep.  133.  In  Penn- 
sylvania, it  has  been  decided,  that  an  action  at  law,  would  lie  to  re- 
cover damages  accruing  from  the  non-performance  of  a  contract  for 
the  sale  of  lands,  which,  being  within  the  statute  of  frauds,  could  not 
be  decreed  in  specie.  Bell  v.  Jlndrews,  4  Dall.  152.  See  also, 
Phillips  V.  Thompson,  1  Johns.  Ch.  Rep.  131.] 

In  Sherburne  v.  Fuller,  which  was  an  action  upon  a  contract  touch- 

(*120) 


OF  PAROL  AGREEMENTS. 


141 


And  for  this  Freeman  states  he  saw  Sir  William  Jones' 
opinion  under  his  hand.  This  was  about  four  years  after 
the  act.  The  next  case  is  Leak  v.  Morrice(e),  which  oc- 
curred in  the  same  year  ;  the  bill  was  to  have  an  agreement 
performed  by  the  defendant ;  which  was,  in  effect,  that 
the  defendant  should  assign  a  term  of  years  in  his  house 
and  certain  goods,  for  two  hundred  guineas,  whereof  he 
paid  one  in  hand  as  earnest  of  the  bargain,  and  three  days 
after  nineteen  guineas  more  ;  and  part  of  the  bargain  was, 
that  it  should  be  executed  by  writings,  by  a  certani  time. 
The  defendant  pleaded  the  statute  of  frauds,  and  alleged 
the  money  was  only  paid  for  the  lease,  but  confessed  the 
receipt  of  the  twenty  guineas,  and  offered  to  repay  them. 
Lord  Keeper  North  said,  it  was  clear  that  the  defendant 

(e)  2  Ch.  Ca.  135  ;   1  Dick.  14. 

ing  the  sale  of  lands  ;  and  it  being  objected  that  it  was  within  the  stat- 
ute, and  that  the  contract  was  proved  only  by  parol  evidence.     It  was 
answered,  that  when  a  contract  within   the  statute   is  rescinded,  either 
party  may  demand  of  the  other  the  repayment  of  the  money  advanced, 
or  the  return  of  the  thing  delivered  under  the  contract,  and  may  support 
such  demand  by  parol  evidence.     Parsons,  C.  J.  said,     "  This   posi- 
tion is  generally  true  ;  and  in  this  case,  had  the  plaintiff'  advanced  mon- 
ey to  the  defendant,  or  delivered  him  as  bailiff'  a  deed  for  safe  custody, 
an  action  would  have  lain  for  the  money  or  deed,  or  even  trover  for  the 
deed,  and  parol  evidence  would   support  such  action.     But  here  the 
land  was  conveyed   to  Fuller  by  M.,  and  the  deed  delivered   to  the  for- 
mer as  evidence  of  his  title  :  although  he  promised   by  parol   that  he 
would  return  it  unrecorded,  if  the  contract  was  rescinded  ;  and   on  the 
return  and  cancelling  of  the  deed,  it  was  understood   that  he  would   bq 
divested  of  the  land.     A  promise  to  return  a  deed  under  such   circum- 
stances is  in  our  opinion  a  promise  concerning  the  sale  of  lands,  as  the 
title  to  the  land  was  intended  to  be  changed   by  the  performance  of  the 
promise.     This  defect   of  written  evidence  cannot  be  aided   by  the  re- 
ceipt in  writing  :  for  that   instrument  proves  a  contract  to  account  for 
money,  and  the  parol  evidence,  given  to  explain  it,  either  contradicts 
the  contract  declared  on,  or  materially  varies  it.     As  the  Justice   of  the 
case  is  with  the  plaintiff',  we  see  no  reason  why  he  may  not  declare  on 
the  receipt,  as  on  a  promise  to  pay  moneys 


142 


OF  PAROL  AGREEMENTS. 


ought  to  repay  the  money,  but  overruled  the  plea  on 
another  ground.  In  this  case  it  does  not  appear  to  have 
occurred  to  either  the  bar  or  the  court,  that  payment  of 
money  would  take  a  parol  contract  for  lands  out  of  the 
statute.  The  case  of  Alsop  v.  Pattenf/J,  arose  about 
fifteen  years  afterwards.  There  a  joint  lessee  of  a  build- 
ing lease  agreed  to  sell  his  moiety  to  the  other  lessee 
for  four  guineas,  and  accepted  a"  pair  of  compasses  in 
hand  to  bind  the  bargain.  The  vendor  pleaded  the  sta- 
tute to  a  bill  filed  by  the  purchaser  for  a  performance  in 
specie.  Lord  Chancellor  Jefferies  ordered  him  to  answer, 
and  saved  the  benefit  of  the  plea  to  the  hearing,  as  the 
agreement  was,  in  some  part,  executed.  In  this  case, 
unless  there  w^as  a  part-performance  of  the  agreement,  in- 
dependently of  the  mere  delivery  of  the  compasses,  it  is 
(*)clear  that  the  Court  confounded  the  section  of  the  statute 
by  which  personal  contracts  are  binding,  if  earnest  is 
paid,  with  the  clause  relating  to  land.  The  next  case  is 
Seagood  v.  Meale(^),  which  arose  thirty-four  years  after 
the  case  of  Alsop  v.  Patten.  The  case  was,  that  upon  a 
parol  agreement  for  sale  of  an  estate  for  150/.,  a  guinea 
was  paid,  and  the  payment  of  the  guinea  was  agreed  to 
be  clearly  of  no  consequence  in  case  of  an  agreement 
touching  lands  or  houses,  the  payment  of  money  being 
only  binding  in  cases  of  contracts  for  goods.  In  this  case 
we  find  the  doctrine  laid  down  generally,  that  the  pay- 
ment of  money  is  not  a  part-performance  of  a  parol  agree- 
ment for  lands,  and  no  distinction  was  taken,  as  seems 
sometimes  to  have  been  thought,  between  the  payment 
of  a  substantial  part  of  the  purchase-money,  and  of  a 
trifling  portion.  Then  comes  the  case  of  Lord  Fingal,  or 
Lord  Pengal  v.  Ross,  which  was  decided  by  Lord  Cowper, 

(/)  1  Yein.  472. 
{g)  Prec.  Cha.  560. 
(*121) 


OF  PAROL  AGREEMENTS. 


143 


in  the  8th  of  Anne(/t)(I).  A.  agreed  with  B.  to  make 
him  a  lease  for  twentj-one  jears  of  lands  rendering  rent, 
B.  paying  A.  150/.  fine.  B.  paid  100/.  in  part,  then 
A.  refused  to  execute  the  agreement ;  and  upon  a  bill 
filed  for  a  specific  performance,  the  agreement  was  held 
to  be  within  the  statute  ;  but  the  100/.  was  decreed  to  be 
refunded.  The  Lord  Chancellor  said,  the  payment  of 
this  100/.  was  not  such  a  performance  of  the  agreement 
on  one  part,  as  to  decree  an  execution  on  the  other  ;  for 
the  statute  of  frauds  makes  one  sort  of.  contracts,  viz. 
personal  contracts,  good,  if  any  money  is  paid  in  earnest. 
Now  that  statute  says,  that  no  agreement  concerning 
(*)lands  shall  be  good,  except  it  is  reduced  into  writing  ; 
and  therefore^^a  parol  agreement,  as  it  was  in  that  case, 
would  not  be  good  by  giving  money  by  way  of  earnest. 
Thus  far  no  room  is  left  for  doubt ;  but  in  Lacon  v. 
Mertins(i),  Lord  Hardwicke  laid  it  dow^n,  that  paying 
money  had  always  been  considered  as  a  part-performance. 
This,  however,  was  a  mere  dictum ;  it  was  not  necessary 
to  decide  the  question  ;  the  cases  on  the  subject  were 
not  cited  ;  and  another  rule  is  laid  down  too  generally  in 
the  same  report.  A  case,  indeed,  is  said  to  have  been 
decided  in  1750(/c),  at  which  time  Lord  Hardwicke  was 
Chancellor,  where  the  bill  was  to  compel  the  acceptance 
of  a  lease  under  a  parol  agreement  upon  a  fine  of  150/. 
and  16/.  paid  in  part  of  the  same  ;  and  the  plea  was 
overruled,  without  hearing  the  counsel  for  the  plaintiff, 
and  the  decision,  it  is  said,  appears  by  the   Registrar's 

(h)  2  Eq.  Ca.  Abr.  46.  pi.  12. 

(t)  3  Alk.  1 . 

{k)  Dickinson  r.  Adams,  4  Ves.  jun.  722,  cited. 

(I)  It  has  been  said,  that  this  case  is  not  to  be  found  in  the  Registrar's 
book.  See  4  Ves.  jun.  721.  The  author  himself  has  searched  the  Re- 
gistrar's calendars  for  1709  and  1710  without  success.  The  search  was 
made  under  the  letters  L,  (the  plaintiff  being  a  lord)  P.  and  F. 

(*122) 


144 


OF  PAROL  AGREEMENTS, 


book(I).  But  it  does  not  appear  from  this  statement, 
whether  there  was  or  was  not  any  other  act  of  part-per- 
formance ;  and  it  is  a  sufficient  objection  to  this  decision, 
that  the  plaintiff's  counsel  were  not  heard,  as  no  one  can 
deny  that  the  point  was  open  to  argument.  The  next 
case  is  a  recent  one(/),  in  which  Lord  Rosslyn  held  that 
the  payment  of  a  small  sum,  as  five  guineas,  where  the 
purchase-money  is  100/.,  would  not  take  the  case  out  of 
the  statute ;  but  he  seemed  clearly  of  opinion,  that  pay- 
ment (*)of  a  considerable  part  of  the  purchase-money 
would  be  sufficient :  and  he  treated  the  case  of  Lord 
Fingal  v.  Ross  as  ill  determined.  However,  it  was  not 
necessary  to  decide  the  question.  The  opinion  was  clear- 
ly extra  judicial.  In  the  late  cas3  of  Coles  v.  Treco- 
thick(m),  where  the  purchase-money  was  20,000/.  and 
2,000/.  were  paid  in  part,  the  point  was  treated  at  the 
bar  as  doubtful,  and  the  Court  evidently  declined  giving 
an  opinion  on  the  subject. 

Upon  the  whole,  it  appears  clearly,  that  since  the  stat- 
ute of  frauds,  the  payment  of  a  small  sum  cannot  be 
deemed  a  part-performance (74).     The  dicta  are  in  favor 

(l)  Main  V.  Melbourn,  4  Ves.  jun.  720. 

(m)  8  Ves.  jun.  234  ;   Ex  parte  Hooper,  1  Mer.  7. 

(I)  The  author  has  searched  (he  Registrar's  calendars  for  1760,  with 
great  attention,  but  without  success.  He  met  with  only  one  case 
where  the  plaintiff's  name  was  Dickinson,  and  there  the  defendant's 
name  was  Baskerville  ;  and  the  case  is  on  a  different  point.  Reg.  Lib. 
^.  1760,  fol.  645.  Neither  does  a  case  in  the  same  book,  fol.  614,  by 
the  name  of  Davids  v.  Adams,  embrace  the  point  in  question.  The 
search  was  made  under  the  letter  A.  as  well  as  the  letter  D. — Note, 
the  case  perhaps  turned  on  the  principle  stated  in  page  126,  infra. 

(74)  If  the  agreement  be  executed,  or  even  partly  executed,  the 
parties  are  not  permitted  to  treat  it  as  a  nullity.  The  statute  does  not 
wholly  vacate  the  contract,  but  only  inhibits  all  actions  brought  to  en- 
force it.  Its  operation  is  limited  by  construction  to  such  executory 
contracts  as  have  been  in  no  substantial  part  executed.     Davenport  v. 

(*123) 


OF  PAROL  AGREEMENTS.  i  A5 

of  a  considerable  sum  being  a  part-performance,  but  this 
construction  is  not  authorised  by  the  statute,  and  it  is  op- 
Mason,  15  Mass.  82.  But  it  is  not  every  part  performance  that  will  be 
stifTicient.  "  I  will  not  say,  that  according  to  adjudged  cases,  a  parol 
lease  for  more  than  three  years,  may  not  be  taken  out  of  the  act  by 
delivery  of  possession.  If  attended  with  improvements  by  the  lessee, 
it  certainly  would  bo  established.  To  give  weight  to  (he  possession,  it 
must  be  a  possession  pursuant  to  the  agreement.  Therefore,  where 
possession  had  been  before  a  parol  agreement  for  a  lease  for  seven 
years  it  was  held  to  be  too  doubtful  to  be  considered  as  a  part  perform- 
ance." Jones  V.  Peterman,  3  S.  &  R.  643.  The  principle  is,  that  part 
performance  will  entitle  the  party  to  a  decree  for  specific  performance,  if 
the  acts  of  part  performance  were  such  as  would  not  have  been  done,  but 
for  the  agreement ;  and  done  with  a  view  to  perform  it ;  and  were  also 
prejudicial  to  the  party  performing.  Thus,  in  Davenpcrt  v.  Mason,  15 
Mass.  89.,  wliere  the  parties  with  others  agreed  to  become  interested 
in  the  purchase  of  lands ;  but  the  title  was  to  be  held  by  a  part  for  the 
benefit  of  all.  An  agreement  under  seal  was  executed;  but  it  omitted 
any  provision  in  respect  to  the  payment  of  the  respective  shares  of  the 
purchase  money  ;  but  in  a  suit  against  the  defendant  for  his  proportion 
of  the  plaintift^'s  advances,  held,  that  he  was  entitled  to  judgment. 
Davenport  v.  Mason,  Supra. 

It  is  clear  that  no  action  at  law  will  lie  on  the  parol  contract  itself. 
1  Pick.  328.  And  a  parol  agreement  to  execute  a  defeasance  to  an 
absolute  deed  has  been  held  to  be  no  ground  of  action  at  law  ;  and  the 
court  said  that  "  Chancery  could  afl'ord  no  relief  in  this  case  ;  for  the 
deed  was  made  and  delivered  according  to  the  intent  of  the  parties  ;  and 
the  breach  of  promise  is  no  more  fraudulent  than  any  other  breach  of 
trust  or  promise."     Boyd  v.  Stone,  11  Mass.  342. 

Where  a  tenant  for  life  permitted  the  plaintifl'  to  cut  a  ditch  throuf^h 
her  land,  to  supply  his  mill  with  water  ;  and  the  former  dying,  the  latter 
made  a  verbal  agreement  with  the  remainder  man  to  purchase  the 
ditch  ;  and  the  purchase  money  'Xo  be  ascertained  by  an  award  of  arbi- 
trators. The  award  having  been  made,  the  plaintift'  sued  his  bill  for  a 
specific  performance  of  the  agreement ;  but  the  court  dismissed  the  bill, 
on  the  ground  that  (here  was  no  part  pcrformrmce.  Hamilton  v.  Jones, 
3  Gill  &  J.  127.  But  the  public  may  acquire  an  interest  in  land;  an 
easement,  by  the  consent  of  the  owner,  without  writing ;  for  it  is  by 
operation  of  law  :  And  a  contract  to  pay  f*r  land  occu|)itd  as  a  road  is 
a  valid  contract.  8  Johns.  256  :  S.  P.  10  ih.  109.  Before  (he  R.  S. 
no  writing  was  necessary  to  give  conser><  to  lay  out  a  road  or  to  relin- 
quish   the   damages  :    And   where   the   defendant    promised    to   pnv  (he 

VOL.   I.  19 


I^g  OF  PAROL  AGREEMENTS. 

posed  by  a  case,  in  which  the  contrary  was  decided,  upon 
the  most  convincing  grounds.  On  this  subject.  Sir  Wil- 
liam Grant's  admirable  judgment  in  Butcher  v.  Butch- 
er(w),  must  occur  to  every  discerning  mind  ;  it  turns  on 
a  subject  so  applicable  to  the  present,  that  his  arguments, 
with  a  slight  alteration,  directly  bear  upon  it.  To  say 
that  a  considerable  share  of  the  purchase-money  must  be 
given,  is  rather  to  raise  a  question  than  to  establish  a  rule. 
What  is  a  considerable  share,  and  what  is  a  trifling  sum  ? 
Is  it  to  be  judged  upon  a  mere  statement  of  the  sum  paid, 
without  reference  to  the  amount  of  the  purchase-money? — 
If  so,  what  is  the  sum  that  must  be  given  to  call  for  the 
interference  of  the  Court  ?  What  is  the  limit  of  amount  at 
which  it  ceases  to  be  trifling,  and  begins  to  be  substantial  ? 
If  it  is  to  be  considered  with  reference  to  the  amount  of 
the  purchase-money,  what  is  the  proportion  which  ought 
to  be  paid  ?  Mr.  Booth  also  was  impressed  with  this 
difficulty,  although  his  sentiments  are  not  so  forcibly 
(*)expressed.  Where,  he  asks,  will  you  strike  the  line  ? 
And  who  shall  settle  the  quantum  that  shall  suffice  in 
payment  of  part  of  any  purchase-money,  to  draw  the  case 

(n)  9  Ves.  jun.  382. 

plaintiff  a  certain  price  for  his  verbal  relinquishment  of  damages  against 
the  public,  he  was  held  liable  to  pay  the  stipulated  damages.  Noyes  v. 
Chapin,  6  Wend.  461. 

A  parol  agreement  to  share  in  the  profits  of  a  speculation  in  land 
is  said  not  to  be  within  the  statute  of  frauds.  4  Conn.  R.  568.  No 
interest  in  lands  shall  pass  otherwise  than  by  deed  or  writing :  but  if 
one  holds  land  in  trust  for  another  ;  and  agrees  verbally  to  sell  and  ac- 
count for  the  proceeds  of  the  sale,  this  agreement  is  not  within  the 
statute.  Thus,  in  Hess  v.  Fox,  10  Wend.  R.  436,  where  the  mortga- 
gee agreed  to  pay  over  to  the  mortgagor  the  surplus  ;  the  latter  having 
released  his  right  to  redeem  :  held,  that  he  was  entitled  to  his  action 
immediately  upon  the  sale.*  "  No  question  can  arise  here  as  to  the 
validity  of  the  agreement  to  sell ;  for  that  was  performed,  and  it  only 
remains  to  pay  over  the  money,  supported  by  the  consideration  of  land 
conveyed  to  the  promisor." 

(*124} 


OF  PAROL  AGREEMENTS.  1*7 

out  of  the  Statute  ;  or  ascertain  what  shall  be  deemed  so 
trifling  as  to  leave  the  case  within  it  ?(o)(75). 

Since  the  above  observations  were  written,  a  decision  of 
Lord  Redesdale's  has  appeared,  in  which  he  held  clearly 
that  payment  of  purchase-money  is  not  a  part-perform- 
ance ;  and  although  his  Lordship  did  not  advert  to  all 
the  cases  on  the  subject,  yet  it  is  sincerely  to  be  hoped 
that  his  decision  will  put  the  point  at  rest.  He  said,  that 
it  had  always  been  considered  that  the  payment  of  money 
is  not  to  be  deemed  a  part-performance,  to  take  a  case 
out  of  the  statute.  Seagood  v.  Meale  is  the  leading  case 
on  that  subject :  there  a  guinea  was  paid  by  way  of 
earnest ;  and  it  was  agreed  clearly,  that  that  was  of  no 
consequence  in  case  of  an  agreement  touching  lands. 
Now,  if  payment  of  fifty  guineas  would  take  a  case  out  of 
the  statute,  payment  of  one  guinea  would  do  so  equally  ; 
for  it  is  paid  in  both  cases  as  part-payment,  and  no 
distinction  can  be  drawn(^)  :  but  the  great  reason,  he 
added,  why  part-payment  does  not  take  such  an  agree- 
ment out  of  the  statute,  is,  that  the  statute  has  said,  that 
in  another  case,  viz.  with  respect  to  goods,  it  shall  operate 
as  a  part-performance.  And  the  Courts  have  therefore 
considered  this  as  excluding  agreements  for  lands,  be- 
cause it  is  to  be  inferred,  that  when  the  Legislature  said 
it  should  bind  in  case  of  goods,  and  were  silent  as  to  the 

(o)    1  Ca.  and  Opin.  136. 

(p)  See  ace.  Cordage  r.  Cole,  1  Saund  319. 

(75)  See  Smith  v.  Fallon's  Les.  1  Serg.  &  Rawle,  80.  Jackson  v. 
Cuirighl,  5  Munf.  308.  Wetmore  v.  While,  2  Caines'  Cas.  in  Error, 
87.  Bell  V.  Ancheu-s,  4  Dall.  152.  In  riwmpson  and  Tod,  1  Peters' 
Rep.  388.  WASHINGTON,  J.  says,  "  although  it  should  be  admit- 
ted, that  under  all  the  circumstances  of  this  case,  payment  of  a  part  of 
the  purchase  money  will  amount  to  a  part  performance,  still,  it  should 
appear  beyond  all  reasonable  doubt,  that  the  payment  was  understood 
by  the  parlies,  to  have  been  so  made  and  intended." 


I^g  OF  PAROL  AGREEMENTS. 

case  of  lands,  they  meant  that  It  should  not  bind  in  the 
case  of  lands(^). 

But,  even  admitting  that  the  payment  of  purchase- 
money  may  be  deemed  a  part-performance,  yet  the  pay- 
ment (*)of  the  auction  duty,  however  considerable,  will 
not  enable  the  Court  to  decree  a  specific  performance  of 
a  parol  agreement ;  as  the  revenue  laws  cannot  be  held 
to  operate  beyond  their  direct  and  immediate  purpose, 
to  affect  the  property  and  vary  the  rights  of  the  parties 
not  within  the  intention  of  the  act(r). 

In  some  cases  it  has  been  decided,  that  acts  done  by  the 
defendant  to  his  own  prejudice,  could  be  made  a  ground 
for  compelling  him  to  perform  the  agreement ;  but  in 
a  late  case(5).  Sir  William  Grant  held  the  contrary, 
where  there  is  no  prejudice  to  the  plaintiff,  because  the 
ground  on  which  the  Court  acts,  is  fraud  in  refusing  to 
perform,  after  performance  by  the  other  party(^)  ;  but 
where  the  defendant  has,  for  instance,  paid  the  auction 
duty  or  purchase-money,  it  is  no  fraud  on  the  vendor, 
but  a  loss  to  himself,  which  ought  not  to  be  made  a  ground 
for  a  specific  performance  against  himself. 

Where  a  person  purchases  several  lots  of  an  estate,  in- 
cluded in  distinct  articles  of  sale,  a  part-performance  as 
to  one  lot  will  not  be  deemed  a  part-performance  as  to 
the  other  lots,  and  will  therefore  only  take  the  agreement 
out  of  the  statute  as  to  the  lot  in  respect  of  which  there 
was  a  part-periormancerw). 


It  may  happen,  that  although  an  agreement  be  in  part 

(q)  Clinan  v.  Cooke,  1  Scho.  &  Lef.  22  ;  and  see  O'Heilihy  v. 
Hedges,  ib.  123  ;   14  Ves.  jun.  388. 

(r)   Buckmaster  v.  Harrop,  7  Ves.  jun.  341  ;   13  Ves.  jun.  456. 

(«)  Buckmaster  v.  Harrop,  tibi  sup.  See  Hawkins  v.  Holmes,  1  P. 
Wms.  770  ;  and  see  jwst,  ch.  4,  n.  observations  on  Potter  v.  Potter. 

(t)  See  Popham  v.  Eyre,  LofTt,  7S6  ;  Clinan  v.  Cooke,  1  Scho.  & 
Lef.  22  ;  and  0'  Herlihy  v.  Hedges,  ibid.  123. 

(«)   Buckmaster  i'.  Harrop,  7  Ves.  jun.  341. 

(*125) 


OF  PAROL  AGREEMENTS. 


149 


performed,  yet  the  Court  may  not  be  able  to  ascertain 
the  terms,  and  then  it  seems  the  case  will  not  be  taken  out 
of  the  statute.  If,  however,  the  terms  be  made  out 
(*)satisfactorily  to  the  Court,  contrariety  of  evidence  is 
not  material (.r),  and  the  Court  will  use  its  utmost  endea- 
vors to  get  at  the  terms  of  the  agreement(76). 

In  the  case  of  Mortimer  v.  Orchard(?/),  where  a  parol 
agreement  with  two  persons  had  been  in  part  performed, 
the  plaintiff's  witness  proved  an  agreement  different  from 
that  set  up  by  the  bill,  and  the  defendants  stated  an 
agreement  different  from  both.  The  Chancellor  thought 
in  strictness  the  bill  ought  to  be  dismissed  ;  but  as  there 
had  been  an  execution  of  some  agreement  between  the 
parties,  and  there  were  two  defendants  who  proved  the 
agreement  set  up  by  their  answers,  he  decreed  a  specific 
performance  of  the  agreement  confessed  by  the  an- 
swers(77). 

In  one  case  where,  upon  the  faith  of  a  parol  agree- 
ment, a  man  entered  and  built,  it  was  proved  that  the 
defendant  told  the  plaintiff  that  his  word  was  as  good  as 
his  bojid,  and  promised  the  plaintiff  a  lease  when  he 
should  have  renewed  his  own  from  his  landlord.  Lord 
Chancellor  Jeflbries  said,  that  the  defendant  was  guilty 
of  a  fraud,  and  ought  to  be  punished  for  it ;  and  so 
decreed  a  lease  to  the  plaintiff,  though  the  terms  icere 
uncertain.     It  was,  he  said,  in  the  plaintiff's  election  for 

(x)   See  1  Ves.  221. 

(j/)  2  Ves.  jun.  243.     See  Lindsay  v.  Lynch,  2  Scho.  oi  Lef.  1. 

(76)  See  Rowton  v.  Rou'lon,  1  Hen.  &  Munf.  92.  See  also,  the 
opinion  of  KENT,  Chancellor,  in  Pavkhurst  v.  Van  Corllaudl,  1 
Johns.  Ch.  Rep.  281.  and  Phillips  \.  Thompson,  1  Johns.  Ch.  Rep. 
149.     Med  V.  Radcliff,  13  Johns.  Rep.  297. 

(77)  See  Cohon\.  Thompson,  2  Wheat.  336.  JVevJviHev.  MilchtU, 
1  Des.  480.  Phillips  V.  Thompson,  1  Johns.  Ch.  Rep.  131.  Park- 
hurat  V.  Van  Cortlandt,  1  Johns.  Ch.  Rep.  273.  Givens  v.  Colder,  2 
Des.  188.  Sec  also,  Colson  v.  Thompson,  ut  supra,  note  a.  341  ;  and 
Morgan  v.  Morgan,  2  Wheat.  302.,  note  d. 

(*126) 


150 


OF  PAROL  AGREEMENTS. 


what  time  he  would  hold  it,  and  he  elected  to  hold  dur- 
ing the  defendant's  term  at  the  old  rent,  but  ihe  plaintiff 
was  to  pay  costs(2:). 

And  in  a  case  from  Yorkshire,  possession  having  been 
delivered  in  pursuance  of  a  parol  agreement,  and  a  dispute 
arising  upon  the  terms  of  the  agreement,  Lord  Thurlow 
sent  it  to  the  Master,  upon  the  ground  of  the  possession 
being  delivered,  to  inquire  what  the  agreement  was. 
The  difficulty  was  in  ascertaining  what  the  terms  were. 
The  Master  decided  as  well  as  he  could,  and  then  the 
(*)cause  came  on  before  Lord  Rosslyn,  upon  further  di- 
rections, who  certainly  seemed  to  think  Lord  Thurlow 
had  gone  a  great  way,  and  either  drove  them  to  a  com- 
promise, or  refused  to  go  on  with  the  decree  upon  the 
principle  upon  which  it  was  made(a). 

Lord  Thurlow,  however,  appears  to  have  formed  a 
settled  opinion  upon  this  point.  For  in  Allan  v.  Bow- 
er(6),  where  his  Lordship  considered  the  written  memo- 
randum as  evidence  of  a  parol  agreement,  which  was  in 
part  performed  (whether  rightly  or  not(c)  is  immaterial  to 
the  present  question),  he  directed  the  Master,  wlio  had 
refused  to  admit  parol  evidence,  to  inquire  and  state  what 
the  promise  was,  that  was  mentioned  in  the  memorandum, 
and  at  what  time  the  promise  was  made,  and  what  inter- 
est the  tenant  was  to  acquire  in  the  premises  under  such 
promise ;  and  the  Master  was  to  be  at  liberty  to  state 
specially  any  particular  circumstances  that  might  arise 
on  such  inquiries,  and  the  parties  were  to  be  examined  on 
interrogatories.  In  consequence  of  this  order,  evidence 
was  received,  which  proved  that  the  tenant  was  to  hold 
during  his  life  ;  and  Lord  Thurlow  decreed  a  lease  to  be 
executed  accordingly. 

(«)   Anon.  5  Vin.  Abr.  523,  pi.  40  ;  and  see  Anon,  ih,  522.  pi.  38. 
(a)  Anon.  6  Ves.  jun,  470,  cited  by  Lord  Eldon. 
(6)  3  Bro.  C.  C.  149. 

(c)  See  1  Sch.  &  Lef.  37. 

(*127) 


OF  PAROL  AGREEMENTS.  |5| 

So  in  a  case  before  Lord  Redesdale,  where  an  agree- 
ment in  writing  was  held  to  be  within  the  statute,  because 
the  term  for  which  it  was  to  be  granted  was  not  expressed, 
his  Lordship  said,  he  should  have  had  great  difficulty  if 
there  were  evidence  of  part-performance.  He  must  have 
directed  a  further  inquiry,  for  the  party  had  not  sug- 
gested by  his  bill,  that  the  agreement  was  for  any  specific 
term,  and  the  case  stood  both  on  the  pleadings  and  evi- 
dence imperfect  on  that  head(J).  And  in  a  late  case 
before  Lord  Eldon,  he  thought  the  Court  must  at  least 
(*)endeavor  to  collect,  if  they  can,  what  are  the  terms 
the  parties  have  referred  to(c). 

But  in  the  case  of  Symondson  v.  Tweed(/),  it  was 
laid  down,  that  in  all  cases  wherever  the  Court  had 
decreed  a  specific  execution  of  a  parol  agreement,  yet  the 
same  had  been  supported  and  made  out  by  letters  in 
writing,  and  the  particular  terms  stipulated  therein,  as  a 
foundation  for  the  decree  ;  otherwise  the  Court  would 
never  carry  such  an  agreement  into  execution.  And  in 
a  case  before  the  late  Lord  Alvanley,  when  Master  of  the 
Rolls(^),  he  is  reported  to  have  said,  "  I  admit  my  opi- 
nion is,  that  the  Court  has  gone  rather  too  far  in  per- 
mitting part-performance,  and  other  circumstances,  to 
take  cases  out  of  the  statute,  and  then,  unavoidably  per- 
haps, after  establishing  the  agreement,  to  admit  parol 
evidence  of  the  contents  of  that  agreement.  As  to  part- 
performance,  it  might  be  evidence  of  some  agreement,  but 
of  what,  it  must  be  left  to  parol  evidence.  I  always 
thought  the  Court  went  a  great  way.  They  ought  not  to 
have  held  it  evidence  of  an  unknown  agreement,  but  to 
have  had  the  money  laid  out  repaid.     It  ought  to  have 

(d)  Clinan  v.  Cooke,  1  Scho.  &  Lef.  22. 

(e)  Boardman  v.  Mostyn,  6  Ves.  jun.  467. 
(/)  Free.  Cha.  374  ;  Gilb.  Eq.  Rep.  35. 
ig)  Forstcr  v.  Hale,  3  Ves.  jun.  712,  713. 

•  (*128) 


152 


OF  PAROL  AGREEMENTS. 


been  a  compensation.  Those  cases  are  very  dissatisfac- 
tory. It  was  very  right  to  say,  the  statute  should  not  be 
an  engine  of  fraud,  therefore  compensation  would  have 
been  very  proper.  They  have,  however,  gone  farther, 
saying,  it  was  clear  that  there  was  some  agreement,  and 
letting  them  prove  it ;  but  how  does  the  circumstance  of 
having  laid  out  a  great  deal  of  money,  prove  that  he  is  to 
have  a  lease  of  ninety-nine  years  ?  The  common  sense  of 
the  thing  would  have  been  to  have  let  them  bring  an 
action  for  the  money.  I  should  pause  upon  such  a  case." 
And  Lord  Eldon  has  said,  that  perhaps  if  it  was  res 
f*)i7itegra,  the  soundest  rule  would  be,  that  if  the  party 
leaves  it  uncertain,  the  agreement  is  not  taken  out  of  the 
statute  sufficiently  to  admit  of  its  being  enforced. 

In  a  late  case  in  Ireland,  where  after  a  part-performance 
of  a  parol  agreement  the  purchaser  died,  and  there  was 
no  evidence  of  the  amount  of  the  price  agreed  on.  or  of 
the  quantity  of  estate  to  be  conveyed,  Lord  Manners  re- 
fused to  grant  a  reference  for  the  purpose  of  ascertaining 
the  terms  of  the  contract.  There  was,  his  Lordship  said, 
no  evidence  whatever  of  the  terms,  and  the  reference  was 
sought  to  supply  the  entire  absence  of  this  very  material 
part  of  the  case.  Where  there  is  contradictory  evidence 
in  a  case  that  raises  a  doubt  in  the  mind  of  the  Court ; 
that  is  to  say,  where  the  case  is  fully  proved  by  the  party 
on  whom  the  onus  of  proof  lay,  but  that  proof  shaken  or 
rendered  doubtful  by  the  evidence  on  the  other  side, 
there  the  Court  will  direct  a  reference  or  an  issue  to 
ascertain  the  fact ;  but  where  there  is  no  evidence  what- 
ever, would  it  not,  he  asked,  be  introducing  all  the  mis- 
chiefs intended  to  be  guarded  against  by  the  rules  of 
the  Court,  in  not  allowing  evidence  to  be  gone  into  after 
publication,  and  holding  out  an  opportunity  to  a  party  to 
supply  the  defect  by  fabricated  evidence,  if  he  were  to 
direct  such  an  inquiry  ?     He  therefore  did  not  think  him- 

(*129)  . 


I 


OF  PAROL  AGREEMENTS. 


153 


self  at  liberty  from  the  evidence  in  the  case  to  direct  the 
reference  or  issue  desired (/<). 

And  in  a  later  case(«),  a  bill  for  a  specific  performance 
was  dismissed  with  costs  because  the  agreement  was  by 
parol,  and  altiiough  part-performed,  the  teims  of  it  could 
not  be  made  out  by  reason  of  the  variance  between  the 
witnesses  for  the  plaintiff. 

(*)We  cannot  but  observe  the  growing  reluctance  ma- 
nifested to  carry  parol  agreements  into  execution,  on  the 
ground  of  part-performance,  where  the  terms  do  not  dis- 
tinctly appear ;  and  although,  according  to  many  autho- 
rities, the  mere  circumstance  of  the  terms  not  appearing, 
or  being  controverted  by  the  parties,  will  not,  of  itself, 
deter  the  Court  from  takins;  the  best  measures  to  ascertain 
the  real  terms(}")  ;  yet  the  prevailing  opinion  requires 
the  party  seeking  the  specific  performance  in  such  a  case 
to  show  the  distinct  terms  and  nature  of  the  contract.  We 
may  however  remark,  that  it  rarely  happens  that  an 
agreement  cannot  be  distinctly  proved  where  the  estate 
is  sold.  Most  of  the  cases  on  this  head  have  arisen  on 
leases,  where  the  covenants,  &c.  are  generally  left  open 
to  future  consideration. 

Where  a  parol  agreement  is  so  far  executed  as  to  en- 
title either  of  the  parties  to  require  a  specific  execution 
of  it,  it  will  be  binding  on  the  representatives  of  the 
other  party  in  case  of  his  death,  to  the  same  extent  as  he 
himself  was  bound  by  it(/t:)(78). 

In  a  case  before    Lord  Redesdale(/),  he  held  that  a 

(h)  Savage  v.  Carroll,  1  Ball  &  Bealty,  265.  See  ibid.  404,  550, 
551. 

(t)  Reynolds  v.  Waring,  1  You.  346. 

( j)  See  Savage  v.  Carrol,  2  Ball  &  Beat.  444. 

{k)  Vide  infra,  eh.  4. 

(/)  Shannon  r.  Bradstrcet,  1  Scho.  &  Lef.  52  ;  Lowe  v.  Swift,  2  Ball 
&  Beat.  529. 


(78)  See  Grant  v.  Craigmiles,  1  Bibb.  203. 
VOL.  I.  20  (*130) 


154 


OF  PAROL  AGREEMENTS. 


contract  by  a  tenant  for  life  with  a  power  of  leasing,  to 
grant  a  lease  under  his  power,  was  binding  on  the  re- 
mainder-man. In  the  course  of  the  argument,  a  question 
was  put  from  the  bar,  whether,  if  this  had  been  a  case 
of  a  parol  agreement  in  part  performed,  it  could  be  en- 
forced ?  In  answer  to  which.  Lord  Redesdale  expressed 
himself  thus  :  "  That,  I  think,  would  raise  a  very  dis- 
tinct question,  a  question  upon  the  statute  of  frauds  ; 
and  perhaps  a  remainder-man  might  be  protected  by  the 
statute,  though  the  tenant  for  life  would  not.  For  the 
(^)party  himself  is  bound  by  a  part-performance  of  a 
parol  agreement,  principally  on  the  ground  of  fraud, 
which  is  personal.  Such  a  ground  could  scarcely  be  made 
to  apply  to  the  case  of  a  remainder-man,  unless  money 
had  been  expended,  and  there  had  been  an  acquiescence 
after  the  remainder  vested,  which  were  held  by  Lord 
Hardwicke,  in  Stiles  v.  Cowper,  3  Atk.  692,  in  the  case 
of  an  actual  lease  under  a  power,  but  with  covenants  not 
according  to  the  power,  to  bind  the  remainder-man  to 
grant  a  lease  for  the  same  term  with  covenants  according 
to  the  power." 

In  a  case  where  it  was  alleged  on  the  one  side,  that 
under  a  parol  agreement  the  purchase-money  had  been 
paid  and  possession*  delivered ;  and  on  the  other,  that 
there  was  no  sale,  but  that  possession  was  delivered  to 
make  a  qualification,  and  the  alleged  purchaser  was  a 
mere  agent,  and  both  the  seller  and  purchaser  were 
dead  ;  an  issue  was  directed  whether  the  purchaser  was, 
at  his  death,  beneficially  entitled  to  the  premises  in  ques- 
tion (m). 

These  remarks  may  be  closed  by  observing,  that  equity 
seems  to  have  been  guided  by  nearly  the  same  rules  in 
compelling  a   specific  performance  of  parol    agreements 

(m)  Barkettu.  Randall,  3  Mer.  466. 
(*131) 


OF   PAROL  AGREEMENTS. 


155 


before  the  statute(??),  as  have  been  adhered  to  since  ; 
but  still,  the  student  cannot  be  too  cautious  in  distin- 
guishing the  cases  which  were  decided  before  the  statute 
from  those  decided  subsequently.  Much  confusion  has 
arisen  from  inattention  |^o  this  point. 

(*)SECTION    IV. 

Of  the  Admissibility  of  Parol  Evidence  to  vary  or  annul 
Written  Instruments. 


Of  this  learning  we  may  treat  under  three  heads, 
1st,  where  there  is  not  any  ambiguity  in  the  written 
instrument ;  2dly,  where  there  is  an  ambiguity ;  and, 
Sdiy,  where  a  term  of  an  agreement  is  omitted  or  varied 
in  the  written  instrument  by  mistake  or  fraud. — And, 

I.  Previously  to  the  statute  of  frauds,  parol  evidence 
might  have  been  given  of  collateral  and  independent 
facts,  which  tended  to  support  a  deed.  Thus,  although 
a  valuable  consideration  was  always  essential  to  the  vali- 
dity of  a  bargain  and  sale,  yet  Rolle  laid  it  down,  that(o) 
upon  averment  that  the  deed  was  in  consideration  of 
money,  or  other  valuable  consideration  given,  the  land 
should  pass,  because  the  averment  was  consistent  with 
the  deed.  The  same  rule  has  prevailed  since  the  statute 
of  frauds.     Where  in  a  conveyance  28/.  only  were  stated 

(n)  See  Miller  r.  Blandist,  Toth.  85  ;  Willam  v.  Nevil,  ibid.  135  ; 
Feme  v.  Bullock,  ibid.  200,  238  ;  Clark  v.  Hackwell,  ibid.  260  ;  Sim- 
mons V.  Cornelius,  1  Cha.  Rep.  12S  ;  Anon.  2  Frecrn.  128  ;  Toll  v. 
Smith,  3  Cha.  Rep.  16;  and  sec  Marquis  of  Normanby  v.  Duke  of 
Devonshire,  2  Freem.  217. 

(o)  2  Ro.  Abr.  786. (N.)   pi.  1  ;  and  see  1  Rep.  176,  a. 

(*132) 


156 


OF  PAROL  EVIDENCE. 


to  have  been  received,  parol  evidence  was  admitted  to 
prove  that  2/.  more  were  actually  paidfp)(79).  And  in  a 
later  case  parol  evidence  was  received,  that  a  sum  of 
money  was  paid  as  a  premium  in  order  to  constitute  the 
relation  of  master  and  apprentice,  although  no  mention 
of  it  was  made  in  the  written  agreement  entered  into  be- 
tween the  parties(9).  In  all  these  cases  we  observe,  that 
the  evidence  is  not  offered  to  contradict  or  vary  the  agree- 
ment, but  to  ascertain  an  independent  fact,  which  is 
consistent  with  the  deed,  and  which  it  is  necessary  to 
(*)ascertain,  with  a  view  to  effectuate  the  real  intention 
of  the  parties. 

It  is,  however,  clearly  settled,  that  parol  evidence  is 
not  admissible  to  disannul  and  substantially  vary  a  writ- 
ten agreement ;  for,  as  Lord  Hardwicke  observes,  to  add 
any  thing  to  an  agreement  in  writing  by  admitting  parol 
evidence,  is  not  only  contrary  to  the  statute  of  frauds  and 

(2?)    Rex  V.  the  Inhabitants  of  Scammonden,  8  Term  Rep.  474. 
(q)   Rex  V.  the  Inhabitants  of  Laindon,  8  Term  Rep.  379  ;  and  see 
2  Cha.  Ca.  143  ;  TuU  v.  Parlett,  1  Mood.  &  Malk.  472. 

(79)  SeeDavejiporiw.JMason,  15  Mass.  Rep.  85.  The  fact  whether 
the  consideration  expressed  in  the  deed,  was  paid,  or  not,  may  be  in- 
quired into  by  parol  evidence.  Shepard  v.  Little,  14  Johns.  Rep.  201. 
Boioen  V.  Bell,  20  Johns.  Rep.  338.  So,  if  a  deed,  after  specifying  a 
certain  consideration,  adds,  "  and  for  other  considerations,"  parol  evi- 
dence may  be  resorted  to,  to  prove  what  those  considerations  were. 
Benedict  v.  Lynch,  1  Johns.  Ch.  Rep.  370.  See  Harvey  v.  Alexander, 
1  Rand.  219.  But  in  Schemerhorn  v.  Vanderhcyden,  1  Johns.  Rep. 
139,  it  was  held,  that  a  different,  or  greater  consideration,  than  that  ex- 
pressed in  the  written  agreement,  was  intended  cannot  be  proved  by  pa- 
rol. See  Church  v.  Church,  4  Yeates,  280.  ;  also,  Dixon  v.  Swiggeit, 
1  Har.  &  Johns.  252. 

An  acknowledgment,  in  the  body  of  a  deed,  of  the  payment  of  the 
purchase-money,  and  a  receipt  indorsed  for  the  same,  not  conclusive  evi- 
dence of  payment,  nor  a  bar  to  a  suit  for  the  purchase-money.  Hamil- 
ton V.  JWGuire,  3  Serg.  &  Rawle,  355.  See  Bell  v.  Andrews,  4  Dall. 
152. 

(*133) 


OF  PAROL  EVIDENCE.  i  ty 

peijuries,  but  to  the  rule  of  the  common  law  before  that 
statute  was  in  being(r)(80). 

Thus,  in  a  leading  case  on  this  subject(5),  it  appeared 
that  bj  an  agreement  in  writing,  the  grass  and  vesture  of 
hay  from  off  a  close  of  land,  called  Boreham's  Meadow, 
were  to  be  taken  by  one  Ansell.  The  subscribing  witness 
to  the  agreement  proved  the  written  agreement,  and  he 
and  another  person  deposed,  that  it  was  at  the  same  time 
(when  the  written  agreement  was  made)  agreed  by    the 

(r)  Parteriche  v.  Powlet,  2  Atk.  383 ;  and  see  Tinney  v.  Tinney,  3 
Atk.  8  ;  Binstead  v.  Coleman,  Bunb.  65  ;  Hogg  v.  Snaith,  1  Taunt. 
347. 

(s)  Meres  v.  Ansell,  3  Wils.  275  ;  and  see  Mease  v.  Mease,  Cowp. 
47;  Lofft,  457;  CufF  v.  Penn,  1  Mau.  &  Selw.  21  ;  Greaves  r.  Ash- 
lin,  3  Campb.  426  ;   Hope  v.  Atkins,  1  Price,  143. 


(80)  This  principle  is  also  well  settled  in  most  of  the  United  Slates. 
Richards  v.  Killam,  10  Mass.  Rep.  239,244.  Stevens  v.  Cooper,  1 
Johns.  Ch.  Rep.  425.  Jackson  v.  Sill,  11  Johns.  Rep.  201.  Paine  v. 
M'lnlier,  1  Mass.  Rep.  69.  Revere  v.  Leonard,  1  Mass.  Rep.  91. 
Storer  v.  Freeman,  6  Mass.  Rep.  435.  Stachpolcv.  Arnold,  11  Mass. 
Rep.  27.  Dwight  v.  Pomero]},  17  Mass.  Rep.  303.  Thompson  v. 
White,  1  Dall.  426.  O'Harra  v.  Hall,  4  Dall.  340.  JSVDermot  v. 
U.  S.  Ins.  Co.  3  Serg.  &  Rawle,  609.  Speake  v.  United  States,  9 
Cranch,  28,  37.  Pierson  v.  Hooker,  3  Johns.  Rep.  68.  Hoxces  v. 
Barker,  3  Johns.  Rep.  506.  Jackson  v.  Croy,  12  Johns.  Rep.  427. 
Thompson  v.  Kctchum,  8  Johns.  Rep.  146.  2d  edit.  Fitzhiigh  v.  Run- 
yon,  8  Johns.  Rep.  292.  2d  edit.  Movan  v.  Haijs,  1  Johns.  Ch.  Rep. 
339.  Stevens  v.  Cooper,  1  Johns.  Ch.  Rep.  425.  Snyder  v.  Snyder, 
6  Binn.  483.  Lee  v.  Biddis,  1  Yeates,  8.  Vandervoort  v.  Smith,  2 
Caines'  Rep.  155.  Hamilton  v.  Cawood,  3  Har.  &  M'Hen.  437. 
Dupree  v.  M'Donald,  4  Des.  209.  Barrel  v.  Barret,  4  Des.  447. 
Sessions  v.  Barjield,  2  Bay,  94.  JMilling  v.  Crankfield,  1  M'Cord, 
261.  South  Carolina  Society  v.  Johnson,  1  M'Cord,  41.  Jackson  v. 
Bowen,  1  Caines'  Rep.  358.  Ross  v.  JVorvell,  1  Wash.  14.  Flemings 
V.  JVillis,  2  Call,  5.  But  see  Baker  v.  Glascock's  Les.  1  Hen.  &  Munf. 
177.  J\Iann  v.  Mann,  1  Johns.  Ch.  Rep.  231.  Herd  v.  Bissell,  1 
Root,  260.  Dunham  v.  Baker,  2  Day,  137.  See  Treadwell  v.  Bulk- 
ley,  4  Day,  395.  ;  Smith  v.  Fenner,  1  Gallis.  170.  Holmes  v.  Simons, 
3  Des.  149,  152.     Little  v.  Henderson,  2  Yeates,  295. 


i^g  OF   PAROL  EVIDENCE. 

parties  by  parol,  that  Ansell  should  not  only  have  the 
hay  from  off  Boreham  Meadow,  but  also  the  possession 
of  the  soil  and  produce  of  that  and  another  close  of  land. 
The  cause  was  tried  at  nisi  prius  before  Lord  Mansfield, 
who  admitted  the  evidence,  and  afterwards  reported  that 
he  was  not  dissatisfied  with  the  verdict  in  consequence 
of  it.  But  Lord  Chief  Justice  De  Grey,  and  the  other 
Judges  of  the  Court  .of  Common  Pleas,  held  decidedly, 
that  the  evidence  was  totally  inadmissible,  as  it  annulled 
and  substantially  altered  and  impugned  the  written  agree- 
ment(81). 

(81)  A  vendor  of  land  in  several  lots  was  unable  to  give  a  title  to 
one,  whereupon  the  vendee  agreed  by  parol  to  waive  the  title  as  to  that 
lot.  This  agreement  cannot  be  set  up  against  the  original  contract  in 
writing.  The  judgment  contains  many  observations  on  the  power  of 
varying  contracts  in  writing,  by  subsequent  parol  agreements,  and  a 
distinction  between  contracts  in  writing  under  the  statute  of  frauds  and 
other  contracts  in  writing.  Parke,  J.  staled  that  he  never  could  under- 
stand the  principle  upon  which  Cuff  v.  Penn,  1  M.  &  S.  21.  and  similar 
cases  proceeded.  Goss  v.  Lord  Nugent,  6  B.  &  Ad.  58 ;  3  Nev.  & 
Man.  28.  S.  C. 

It  is  true  as  a  general  rule  that  any  verbal  agreement  before  the  mak- 
ing of  tke  writing  is  not  to  be  received  in  evidence ;  but  the  writing 
alone  is  to  be  looked  to  as  the  evidence  of  the  final  agreement.  In 
Oerrish  v.  Washburn,  9  Pick.  338,  where  the  defendants  gave  an  ac- 
countable receipt  for  money  received  of  the  plaintiffs  ;  and  this  action 
being  brought  to  recover  the  money,  the  defendants  at  the  trial  offered  to 
prove,  that  before  the  execution  of  the  receipt,  the  plaintiff  being  indebt- 
ed to  one  W.  ;  and  the  latter  indebted  to  the  defendants,  agreed  that  the 
latter  might  arrange  the  payment  of  the  money  mentioned  in  the  receipt 
with  W.  :  And  that  the  receipt  was  made  in  execution  of  the  con- 
tract : — but  the  Judge  rejected  the  evidence.  The  whole  Court  grant- 
ed a  new  trial ;  and  held  that  it  was  admissible  ;  for  the  writing  was 
neither  a  promissory  note,  nor  a  mere  receipt.  "  We  view  it,  said  the 
chief  justice,  in  neither  of  these  lights,  or  rather  in  both.  The  promise 
made  in  the  receipt  may  be  performed  otherwise  than  by  paying  over 
the  money  to  the  plaintiff,  and  in  any  way  conformable  to  the  intention 
of  the  parlies." 

The  maxim  that  a  sealed  contract  cannot  be  avoided  or  waived  but  by 
an  instrument  of  a  like  nature  ;  or  generally,  that  a  contract  under 


OF  PAROL  EVIDENCE. 


159 


So  in  Preston  v.  Merceau(^),  by  an  agreement  in  writing 
a  house  was  let  at  26/.  a  year  ;  and  the  landlord  attempted 

(/)  2  Blackst.  1249. 

seal  cannot  be  avoided  or  altered  or  explained  by  parol  evidence,  like 
other  maxims  has  received  quaUfications,  and  indeed  was  never  true  to 
the  letter,  for  at  all  times,  a  bond,  covenant  or  other  sealed  instrument 
might  be  defeated  by  parol  evidence  of  payment,  accord  and  satisfac- 
tion, &c.  Therefore,  in  Munroe  v.  Perkins,  9  Pick.  29S.  where  the 
action  was  assumjJsU,  for  work,  materials,  &c.  done  and  furnished  by  the 
plaintift'  for  the  defendant.  The  defence  set  up  was,  that  the  work  was 
done  and  the  materials  were  furnished  on  a  special  contract  under  seal 
made  by  the  defendant  and  Payne  on  behalf  of  themselves  and  other 
subscribers  to  the  building ;  and  such  a  contract  was  produced  in  evi- 
dence. The  plaintiff  showed  that  being  unable  to  go  on  with  the  con- 
tract without  loss,  defendants  promised  him  to  make  him  whole  ;  and 
upon  this  assurance  the  work  was  done  without  regard  to  the  special 
contract.  The  Court  he'd,  that  the  plaintiff  was  entitled  to  recover. 
"  The  parol  promise,  it  is  contended,  was  without  consideration.  1'his 
depends  entirely  on  the  question,  whether  the  fust  contract  was  waived. 
The  plaintifT  having  refused  to  perform  the  contract,  as  he  might  do, 
subjecting  himself  to  such  damages  as  the  other  parties  might  show 
they  were  entitled  to  recover,  he  afterwards  went  upon  the  faith  of  the 
new  promise  and  finished  the  work.  This  was  a  sufficient  considera- 
tion. If  the  defendants  were  willing  to  accept  his  relinquishment  of 
the  old  contract,  the  law  we  think  will  not  prevent  it." 

So  in  Lattimore  et  al  v.  Harsen,  14  Johns.  R.  330,  where  the  plain- 
tills  had  stipulated  to  perform  certain  work  for  a  stipulated  sum,  under  a 
jicnally.  Having  entered  upon  the  performance  of  it,  they  refused  to 
perform,  whereupon  the  defendant,  by  parol,  released  them  from  their 
covenant,  and  promised,  if  they  would  complete  the  work,  to  pay  them 
by  the  day.  The  Court  held  the  new  contract  to  be  binding.  This  doctrine 
was  also  recognized  in  the  subsequent  case  of  Dearborn  v.  Cross,  7 
Cowen,  48,  where  a  parol  agreement  executed  was  held  to  discharge 
a  bond  or  other  specialty.  The  cases  of  Fleming  v.  Gilbert,  3  Johns. 
358  ;  Keating  v.  Price,  1  J.  Cas.  22  ;  Edwin  v.  Saunders,  1  Cowen, 
250.  In  Ballard  v.  Walker,  3  J.  Cas.  64,  lapse  of  time  alone  was  held 
to  be  a  waiver  of  the  contract. 

Where  there  is  an  agreement  in  writing,  it  merges  all  parol  agree- 
ments and  previous  conversations  ;  but  there  are  many  cases  we  have 
seen  in  which  a  new  parol  contract  is  admitted  to  be  proved.  And 
there  is  a  distinction  between  a  suit  upon  the  written  contract  itself,  in 


160 


OF  PAROL  EVIDENCE. 


(*)to  show,  by  parol  evidence,  that  the  tenant  had  agreed 
to  pay  the  ground-rent  for  the  house  to  the  original  land- 
lord, over  and  above  the  261.  a  year ;  but  the  Court  of 
Common  Pleas  rejected  the  evidence. 

And  upon  the  general  rule  of  law,  as  it  seems,  inde- 
pendently of  the  statute  of  frauds,  it  has  been  determined 
that  verbal  declarations  by  an  auctioneer  in  the  auction- 
room,  contrary  to  the  printed  conditions  of  sale,  are  in- 
admissible as  evidence, (82)  unless  perhaps  the  purchaser 
has  particular  personal  information  given  him  of  the  mis- 
take in  the  particulars(i<). 

In  a  late  case(v),  upon  the  sale  of  timber  by  a  written 
particular,  which  was  silent  as  to  the  quantity,  it  was 
attempted  to  show,  that  the  auctioneer  verbally  warranted 
the  quantity  to  be  eighty  tons,  and  it  was  insisted  that 
this  evidence  was  admissible,  because  it  did  not  contradict 
the    particular,    but    merely  supplied   its   defect   in   not 

{u)  Gunnisr.  Erhart,  1  H.  Blackst.  289.  See  13  Yes.  jun.  471. 
and  infra;  and  Fife  v.  Clayton,  13  Ves.  jun.  546;  Higginson  v. 
Clowes,  15  Yes.  jun.  516. 

(v)  Powell  V.  Edmunds,  12  East,  6  ;  Jones  v.  Edney,  3  Camb.  285. 

which  case  it  has  been  held  that  parol  evidence  shall  not  be  received  : 
and  a  suit  brought  on  the  ground  of  a  new  subsequent  agreement  not 
in  writing  :  in  the  latter  case  parol  evidence  is  admitted.  Duncan,  J. 
in  Le  Fevre  v.  Le  Fevre,  4  S,  &  R.  241.  said  "a  party  may  be  ad- 
mitted to  prove  by  parol  evidence,  that  after  signing  a  written  agree- 
menti  the  parties  made  a  verbal  agreement,  varying  the  former,  provid- 
ed their  variations  have  been  acted  upon,  and  the  original  agreement 
can  no  longer  be  enforced  without  a  fraud  on  one  party."  Parol 
evidence  was  admitted  in  that  case  to  prove  an  alteration  of  the 
course  of  an  aqueduct  established  by  deed.  The  evidence  was 
not  offered  for  the  purpose  of  contradicting  the  deed,  but  to  show  a  sub- 
stitution of  another  spot.  And  as  was  well  remarked  by  the  learned 
Judge,  "  if  this  had  not  been  carried  into  effect,  the  evidence  would  not 
have  been  admissible  ;  but  where  the  situation  of  the  parties  is  altered, 
by  acting  upon  the  new  agreement,  the  evidence  is  proper." 

(82)  See  Wright's  Les.  v.  Deklijne,  1  Peters'  Rep.  199,  204.  See 
also,  Waimvright  v.  Read,  1  Des.  573. 

(*134) 


or  PAROL  EVIDENCE.  igi 

Stating  the  quantity.  But  it  was  held  that  the  evidence 
was  not  admissible(83).  Lord  Ellenborough  said,  that  the 
purchaser  ought  to  have  had  it  reduced  into  writing  at 
the  time,  if  the  representation  then  made  as  to  the  quan- 
tity swayed  him  to  bid  for  tlie  lot.  If  the  parol  evidence 
were  admissible  in  this  case,  he  knew  of  no  instance  where 
a  party  might  not,  by  parol  testimony,  superadd  any  term 
to  a  written  agreement,  which  would  be  setting  aside  all 
written  contracts,  and  rendering  them  of  no  effect.  There 
was  no  doubt,  his  Lordship  added,  that  the  warranty  as 
to  the  quantity  of  timber  would  not  vary  the  agreement 
contained  in  the  written  conditions  of  sale. 

So,  since  the  act  of  parliament  for  altering  the  style, 
a  demise  from  Michaelmas  must  be  taken  to  be  from 
(*)new  Michaelmas,  and  parol  evidence  cannot  be  admit- 
ted to  show  that  the  parties  intended  it  to  commence  at 
old  Michaelmas(a;),  unless  the  demise  is  by  parol(2/). 

The  rules  of  evidence  are  universally  the  same  in  courts 
of  law  and  equity.  Therefore  parol  evidence,  which 
goes  to  substantially  alter  a  written  agreement,  cannot 
be  received  in  a  court  of  equity  any  more  than  in  a  court 
of  law(z)(84). 

(x)  Doe  V.  Lea,  11  East,  312. 

iy)  Doe  V.  Benson,  4  Barn.  &  Aid.  588. 

(r)  See  3  Wils.  276  ;  and  see  Foot  v.  Salway,  2  Cha.  Ca.  142. 

(83)  See  Wright's  Les.  v.  Deklyne,  1  Peters'  Rep.  199,  204.  See 
also  Wainicright  v.  Read,  1  Des.  673. 

(84)  See  Dwight  v.  Pomeroy,  17  Mass.  Rep.  303.  JMovan  v.  Hays, 
1  Johns.  Ch.  Rep.  443,  Per  KENT,  Chancellor.  Holmes  v.  Simons, 
3  Des.  149,  152.     Diipree  v.  M'Donald,  4  Des.  209. 

"  Indeed  it  would  be  strange  that,  in  any  country,  there  should  be 
independent  tribunals,  having  jurisdiction  over  the  same  subject  matter, 
which  should  act  upon  such  different  principles,  as  that  a  contract 
should  be  valid  in  one  and  void  in  the  other.  One  may  have  forms  and 
processes  to  enforce  a  contract,  which  the  other  may  want ;  but  it 
would  seem  impossible  that  the  contract  itself  should  be  valid  or  invalid, 
according  to  the  form  in  which  it  should  be  discussed.  But  were  it 
otherwise  in  England,  or  in  New  York,  as  some  of  the  cases  tend   to 

VOL.  1.  21  (*136) 


1  nc)  or  PAROL  EVIDENCE. 

Thus  in  the  case  of  Lawson  v.  Laiide(a),  a  bill  was 
brought  to  carry  into  execution  an  agreement  between 
the  plaintiff  and  defendant,  for  granting  to  the  defendant 
a  lease  of  a  farm.  The  defendant  objected  to  execute 
the  lease,  because  some  land,  called  Oxlane,  agreed  to  be 
demised,  was  left  out  of  the  lease.  The  plaintiff  offered 
evidence  to  prove,  that  it  was  left  out  by  the  particular 
and  joint  direction  of  the  plaintiff  and  defendant.  Sir 
Thomas  Clarke  held  the  evidence  to  be  in  direct  contra- 
diction to  the  stutute  of  frauds,  and  therefore  dismissed 
the  bill. 

So  in  a  case  before  Lord  Bathurst(6),  the  bill  was 
filed  for  an  injunction  to  stay  proceedings  at  law  for 
a  breach  of  covenant,  in  not  assigning  all  the  premises, 
which  the  defendant  insisted,  by  an  agreement  in  writing, 
and  a  lease  in  pursuance  of  it,  were  to  be  assigned.  The 
plaintiff  stated  by  his  bill,  that  though  the  agreement  was 
for  all  the  premises,  yet  the  defendant,  at  the  time  of  the 
execution  of  the  lease,  agreed  that  three  pieces  of  land 
should  be  excepted,  and  the  plaintiff  examined  several 
witnesses  to  prove  the  fact,  which  they  did  ;  but  the 
defendant  by  his  answer  denied  the  fact,  and  insisted 
(*)upon  the  extent  of  the  written  agreement ;  and  the 

(o)   1  Dick.  346. 

(i)  Fell  V.  Chamberlain,  2  Dick.  484.     I  could  not  meet  with  the 
facts  in  the  Registrar's  book;  see  Reg.  Lib.  A.  1772,  fol.  1.  496. 

shew  (2  J.  Ch.  R.  585 ;  7  Johns.  373.)  it  would  by  no  means  follow 
that,  in  this  commonwealth,  the  same  doctrine  would  be  received." 
(Per  Parker  C.  J.  in  Dwight  v.  Pomeroy.)  He  added,  "  there  are  but 
two  cases,  in  which  parol  evidence  can  be  admitted,  to  control  the  ef- 
fect of  a  deed  or  written  contract,  in  itself  complete  and  intelligible. 
One  is  fraud,  of  which  the  injured  part  may  avail  himself  at  law  as  well 
as  in  equity ;  and  the  other  is  where  application  is  mads  in  equity  to 
enforce  a  written  contract ;  the  adverse  party  in  the  latter  case  may 
show  that  the  instrument  relied  on  does  not  contain  the  true  agreement  of 
the  parties,  or  the  whole  of  it.  In  the  latter  case  equity  may  refuse  the 
exercise  of  its  powers,  unless  justice  is  done  to  the  other  party. 
(*136) 


OF  PAROL  EVIDENCE.  Jgg 

parol  evidence  being  objected  to  at  the  hearing,  it  was  not 
permitted  to  be  read. 

And  in  an  important  case  before  Lord  Eldon(c),  his 
Lordship  refused  to  execute  an  agreement  with  a  varia- 
tion attempted  to  be  introduced  by  parol,  on  the  ground 
of  mistake,  or  at  least  of  surprise,  which  was  denied  by 
the  answer.  So  in  the  late  case  of  Woollam  v.  Hearn(c?), 
where  a  specific  performance  was  sought  of  an  agreement 
for  a  lease,  at  a  less  rent  than  that  mentioned  in  the  agree- 
ment, which  variation  was  introduced  by  parol,  on  the 
ground  of  fraud  and  misrepresentation  in  the  landlord  ; 
the  evidence  was  read  without  prejudice,  and  the  Master 
of  the  Rolls  thought  it  made  out  the  plaintiff's  case  ;  but 
his  Honor  held  himself  bound  by  the  authorities,  and 
accordingly  rejected  the  evidence,  and  dismissed  the  bill. 
And  this  doctrine  has  been  distinctly  recognized  by  Lord 
Redesdale(e). 

So  verbal  declarations,  in  opposition  to  printed  condi- 
tions of  sale,  are  inadmissible  as  evidence  in  equity  as 
well  as  at  law(/). 

And  if  a  material  term  be  added  by  one  party  to  a 
written  agreement  after  its  execution,  he  destroys  his 
own  rights  under  the  instrument.  But  although  this 
doctrine  has  been  referred  to  the  statute  of  frauds,  yet 
it  seems  rather  to  depend  on  the  principles  of  the  com- 
mon law(«-). 

In  the  late  case  of  Besant  v.   Richards(/t),  where   the 

{c)  Marquis  of  Townshend  r.  Stangroom,  6  Ves.  jun.  328.  See  1 
Ves.  &  Bca.  526,  527. 

((/)  7  Ves.  jun.  211. 

(e)    1  Scho.  &  Lef.  39. 

(/)  Jenlunson  v.  Pepys,  6  Ves.  jun.  330,  cited  ;  15  Ves.  jun.  621  ; 
1  Ves.  &  Bea.  528  ;  see  15  Ves.  jun.  171,  646  ;  Higginsonr.  Clowes, 
15  Ves.  jun.  516. 

(o-)   Powell  r.  Divett,  15  East,  29. 

(A)    1  Tomlyn  509. 


164 


OF  PAROL  EVIDENCE. 


purchaser  was  plaintiff,  the  contract  described  the  pro- 
perty (*)as  held  by  one  Watson,  and  the  sale  was  to  be 
completed  at  Michaelmas.  Watson  held  an  agreement  for 
a  lease  for  ten  years,  but  the  seller  represented  to  the 
purchaser  that  this  agreement  was  void,  and  that  he  had 
served  Watson  with  notice  to  quit  at  Michaelmas,  and 
that  he  would  give  possession  at  that  time.  The  tenant 
refused  to  quit,  and  the  Master  of  the  Rolls  held  that  the 
purchaser  ought  not  to  be  bound  by  the  agreement,  pur- 
chasing as  he  did  on  the  faith  of  that  representation.  He 
was  entitled  to  be  released  from  the  agreement  altogether, 
or  if  he  chose  he  might  perform  it  and  have  compensa- 
tion, and  the  plaintiff  electing  to  perform  the  agreement 
with  a  compensation,  a  decree  was  made  accordingly ; 
but  it  seems  difficult  to  sustain  this  decision  consistently 
with  the  authorities,  although  there  might  have  been 
sufficient  ground  to  have  released  the  purchaser  altogether. 

But  when  equity  is  called  upon  to  exercise  its  peculiar 
jurisdiction,  by  decreeing  a  specific  performance,  the  party 
to  be  charged  is  to  be  let  in  to  show,  that,  under  the  cir- 
cumstances, the  plaintiff  is  not  entitled  to  have  the  agree- 
ment specifically  performed (i)(85). 

Therefore  a  defendant  resisting  a  specific  performance 
of  an  agreement,  may  prove  by  parol  evidence,  that  by 
fraud  the  written  agreement  does  not  contain  the  real 
terms(y).     Such  evidence  wsis  admitted  by  Lord  Hard- 

{i)  See  7  Ves.  jun.  219. 

{j)  See  the  cases  cited  infra,  as  to  discharging  or  varying  a  written 
agreement  by  parol ;  and  see  Walker  v.  Walker,  2  Atk.  98 ;  and  see  6 
Ves.  jun.  334,  n. 

(85)  See  Stevens  v.  Cooper,  1  Johns.  Ch.  Rep.  425.  Botsford  v. 
Burr,  2  Johns.  Ch.  Rep.  405.  Gillespie  v.  J\Ioon,  2  Johns.  Ch.  Rep. 
585.  In  JMaryland,  it  has  been  determined,  in  an  action  at  law,  on  a 
bond  for  the  purchase-money  of  lands,  that  parol  evidence  cannot  be 
given  by  a  witness,  to  shew,  that  he  was  seized  of  part  of  the  lands  sold, 
in  order  to  rebut  the  claim  of  the  vendor.  Sharpe  v.  Gibson,  1  Har. 
&  Johns.  447. 


OF  PAROL  EVIDENCE. 


165 


wicke  in  Joynes  v.  Statham(A;) ;  and  in  the  case  of 
Woollam  V.  Hearn(/),  before  cited,  the  Master  of  the 
Rolls  said,  that  if  it  had  been  a  bill  brought  by  the  de- 
fendant for  a  specific  performance,  he  should  have  been 
(*)bound  by  the  decisions  to  admit  the  parol  evidence,  and 
to  refuse  a  specific  performance. 

So  Lord  Hardwicke  admitted,  that  an  omission  by  mis- 
take or  surprise,  would  let  in  the  evidence  as  well  as 
fraud  ;  and  Lord  Eldon  actually  admitted  parol  evidence 
of  surprise,  as  a  defence  to  a  bill  seeking  a  performance  in 
specie ;  but  his  Lordship  said,  that  those  producing  evi- 
dence of  mistake  or  surprise,  in  opposition  to  a  specific 
performance,  undertake  a  case  of  great  difficulty(m). 
In  a  later  case,  the  Master  of  the  Rolls  admitted  parol 
evidence  on  behalf  of  a  defendant,  to  show  a  parol  pro- 
mise at  the  time  of  signing  the  agreement  to  vary  the 
terms  of  it,  and  upon  the  evidence  he  dismissed  the  bill  for 
a  specific  performance  of  the  written  agreement(w)(86). 


{1c)  3  Atk.  338. 

(0   7  Ves.  jun.  211. 

(m)   Marquis  of  Townshend  v-  Stangroom,  6  Ves.  jun.  328. 

(7i)   C^rke  V.  Grant,  14  Ves.  jun.  519  ;  and  see  15  Ves.  jun.  523. 

(86)  Parol  evidence  collateral  to  an  agreement  is  admissible ;  but  no 
evidence  of  matter  dehors  was  admissible  to  alter  the  terms  and  sub- 
stance of  the  contract.  In  Clarke  r.  Grant,  14  Ves.  510,  the  parol 
evidence  admitted  was  of  a  stipulation  entered  into  by  the  defendant 
prior  to,  and  as  a  condition  precedent  to  the  execution  of  the  agree- 
ment :  and  it  did  not  seek  to  vary  the  substance  of  the  agreement : 
Here  the  purpose  of  the  parol  evidence  was  to  show  the  transaction 
conducted  on  the  basis  of  an  exchange.  Croome  v.  Lediard,  2  M.  & 
R.  Ch.  R.  261. 

The  expression  '  deed  of  conveyance'  was,  it  seems,  explained  by 
parol  evidence  to  mean,  when  inserted  in  articles  of  agreement,  "  a 
deed  conveying  the  land  free  of  all  incumbrances."  Subsequent  deci- 
sions, however,  consider  the  correctness  of  this  decision  doubtful.  The 
case  of  Zantinger  v.  Ketch,  4  Dall.  R.  132.  therefore,  in  which  the  de- 
cision was  had,  if  not  overruled,  is  certainly  opposed  to   the  rule   that 

(*138) 


Igg  OF  PAROL  EVIDENCE. 

And  where  lands,  which  upon  admeasurement  did  not 
contain  thirty-six  acres,  were  described  in  a  particular  to 
contain  forty-one  acres  by  estimation,  were  the  same  more 
or  less,  and  the  purchaser  in  answer  to  a  bill  for  a  specific 
performance  set  up  parol  declarations  of  the  auctioneer 
that  he  sold  it  for  forty-one  acres,  and  if  it  was  less  an 
abatement  should  be  made,  his  Honor  admitted  the  evi- 
dence and  dismissed  the  bill,  because  after  such  a  declara- 
tion made  by  the  auctioneer,  it  was  fraudulent  and  unfair 
in  the  seller  to  insist  upon  the  execution  of  the  contract, 
not  giving  the  defendant  the  benefit  of  that  declaration(o). 

So  where  by  the  mistake  of  the  solicitor  the  agree- 
ment only  required  the  purchaser  to  bear  the  expense  of 
the  conveyance,  whereas  the  real  agreement  was,  that  he 
should  also  bear  the  expense  of  making  out  the  title,  the 
Master  of  the  Rolls  admitted  parol  evidence  of  the  real 
agreement  and  of  the  mistake(87)  ;  and  upon  the  strength 
of  (*)it,  his  Honor  gave  the  plaintiff,  the  purchaser,  his  op- 
tion to  have  his  bill,  which  Avas  for  a  specific  performance 
according  to  the  terms  of  the  written  agreement,  dismiss- 
ed, or  to  have  the  agreement  performed  in  the  way  con- 
tended for  by  the  seller(p). 

m    ■ 

(o)   Winch  V.  Winchester,  1  Ves.  &  Beam.  375. 

(p)   Ramsbottom  v.  Gosden,  1  Ves.  &  Beam.  165.     See  Flood  v. 

'  where  the  construction  is  on  the  construction  of  words,  qua  words,  no 
parol  evidence  can  be  admitted.'     4  Dall.  340  ;  3  S.  &  R.  609. 

(87)  See  Gillesj)ie  v.  Moon,  2  Johns.  Cb.  Rep.  685.  Chapmcm  v. 
Mien,  Kirby,  399.  Elmore  v.  Auslin,  2  Root,  415.  Washburn  v. 
Merrills,  1  Day,  139.  Maison  v.  Parhhurst,  1  Root,  404.  Cook  v. 
Preslon,  2  Root,  78.  In  Christ  v.  DeffebacK;  1  Serg.  &  Rawle,  465, 
TILGHMAN,  Ch.  J.  said,  "  It  may  be  laid  down  as  settled  law,  that 
parol  evidence  is  admissible  in  cases  of  fraud  and  of  plain  mistake  in 
drawing  a  writing."  In  South  Carolina,  it  has  been  decided  that  the 
scrivener  who  drew  articles  of  a  marriage  settlement,  could  not  be  allowed 
to  testify,  that  the  object  or  intention  of  the  deed,  was  different  from 
that  which  appeared  on  its  face.  Dupree  v.  McDonald,  4  Des.  209. 
The  same  principle  was  recognized  in  Rothmahler  v.  Myers,  4  Des.  215. 
(*139) 


OF  PAROL  EVIDENCE.  ]g7 

But  in  a  case  where  a  written  agreement  for  a  lease 
had  been  varied  in  part  by  parol,  upon  a  bill  filed  by  the 
tenant  for  a  specific  performance  of  the  original  agree- 
ment, the  landlord  set  up  a  parol  waver  of  the  written 
agreement,  and  a  new  agreement  entered  into  at  his  soli- 
citor's, every  term  of  which  was  to  the  disadvantage  of  the 
plaintiff,  without  any  consideration  for  the  variation  ;  the 
Master  of  the  Rolls  decreed  a  specific  performance  accord- 
ing to  the  prayer  of  the  bill.  His  Honor  considered  the 
case  made  out  by  the  lajidlord(q)  not  a  ivaver  of  the  con- 
tract, but  a  variation  by  parol  which  had  not  been  acted 
upon,  and  which  was  made  without  consideration.  The 
first  parol  variation,  it  may  be  observed,  was  admitted, 
and  the  plaintiff  would  have  been  willing  to  execute  it. 

And  in  a  case  where  an  estate  was  sold  in  lots,  and  at 
the  end  of  some  of  the  lots  only  it  was  stated  that  the  tim- 
ber was  to  be  taken  at  a  valuation,  but  there  was  a  gen- 
eral condition  that  the  timber  should  be  paid  for  ;  the 
seller's  bill  for  a  specific  performance,  requiring  the  pur- 
chaser of  several  lots  to  pay  for  all  the  timber,  was  dis- 
missed, and  parol  evidence  of  the  declaration  of  the  auc- 
tioneer that  the  timber  on  all  the  lots  was  to  be  paid  for, 
was  rejected.  The  purchaser  then  filed  a  bill  against  the 
seller  for  a  specific  performance,  according  to  his  construc- 
tion that  he  was  to  pay  for  the  timber  on  the  lots  only  to 
which  (*)<i  stipulation  to  that  effect  was  added.  The  seller, 
as  defendant,  ofiered  parol  evidence  of  the  declaration  by 
the  auctioneer.  The  Vice-Chancellor  agreed  that  fraud, 
mistake  or  surprise,  would  let  in  the  evidence  as  a  defence  ; 
but  no  authority  having  decided  that  evidence  can  be  re- 
ceived, except  upon  one  of  those  grounds,  and  these  dec- 

Finlay,  2  Ball  &  Beatty,  9  ;  Lord  William  Gordon  r.  Marquis  of  Hert- 
ford, 2  Madd.  106;  Garrard  r.  Girling,!  Wils.  Ch.  Cas.  460;  1 
Swanst.  244. 

(9)  Price  V.  Dyer,  MS.  ;   S.  C.  17  Yes.  jun.  356  ;  Robinson  r.  Page, 
3  Riiss.  114. 

(*140) 


168 


OF  PAROL  EVIDENCE. 


larations  in  the  case  before  his  Honor  being  offered  where 
the  parties  had  contracted  in  writing  upon  a  subject  dis- 
tinctly adverted  to  in  their  written  contract,  which  made 
a  provision  for  it  (whether  explicit  and  satisfactory  is  not 
material),  the  evidence  of  these  declarations  must  be  re- 
jected, because  there  was  no  fraud,  mistake,  or  surprise, 
and  the  evidence  was  offered  to  contradict,  explain,  or 
vary  the  written  contract(r).  It  was  not,  however,  ne- 
cessary to  decide  the  point ;  and  it  may  deserve  reconsid- 
eration whether  the  evidence  might  not  be  deemed  admis- 
sible in  equity  as  a  defence,  simply  on  the  ground  that  the 
plaintiff,  who  ought  to  come  into  equity  with  clean  hands, 
sought  to  commit  a  fraud  in  evading  to  pay  for  the  tim- 
ber, although  the  auctioneer  declared  that  it  was  to  be 
paid  for. 

The  case  before  Lord  Eldon(5)  shows  the  rule  of  equity 
in  a  strong  light.  The  landlord  filed  a  bill  for  a  specific 
performance  of  the  written  agreement,  varied  by  the  parol 
evidence ;  the  tenant  filed  a  cross-bill  for  a  specific  per- 
formance of  the  written  agreement.  The  result  was,  that 
both  bills  were  dismissed  ;  the  first,  because  parol  evidence 
was  not  admissible  as  a  foundation  for  a  decree  enforcing 
a  specific  performance ;  the  second,  on  the  ground  that 
such  evidence  was  admissible  to  rebut  the  equity  of  the 
plaintiff  in  the  second  bill. 

A  similar  case  appears  to  have  been  decided  by  Lord 
Chancellor  Macclesfield.  The  case  has,  I  believe,  never 
(*)been  cited,  and  it  requires  some  attention  to  get  at  the 
facts.  They  appear,  however,  to  be,  that  the  plaintiff  in 
the  first  bill  sought  a  specific  performance  of  an  agree- 
ment by  him  to  grant  a  lease  to  the  defendant.  The 
defendant  set  up  a  parol  agreement,  by  which  he  was  to 
have  liberty  to  grub  bushes,  and  exhibited  a  cross-bill 

(r)  Clowes  r.  Higginson,  1  Ves.  &  Bea.  524. 
(«)  Lord  Tdwnshend  v.  Stangroom. 
(*141) 


OF  PAROL  EVIDENCE. 


169 


for  a  performance  in  specie  of  the  written  agreement,  with 
the  addition  of  a  clause  to  grub  bushes  according  to  the 
parol  agreement,  and  both  the  bills  were  dismissed,  but 
without  costs(/). 

Upon  the  admissibility  of  parol  evidence,  as  a  defence 
to  a  bill  seeking  a  specific  performance,  Lord  Redesdale 
has  forcibly  observed,  that  it  should  be  recollected  what 
are  the  words  of  the  statute  :  "  No  person  shall  be  charged 
upon  any  contract  or  sale  of  lands,  unless  the  agreement, 
or  some  memorandum  or  note  thereof,  shall  be  in  writing, 
and  signed  by  the  party  to  be  charged  therewith,  or  some 
other  person  thereunto  by  him  lawfully  authorized."  No 
person  shall  be  charged  with  the  execution  of  an  agree- 
ment who  has  not,  either  by  himself  or  his  agent,  signed 
a  written  agreement ;  but  the  statute  does  not  say,  that 
if  a  written  agreement  is  signed,  the  same  exception  shall 
not  hold  to  it  that  did  before  the  statute.  Now,  before  the 
statute,  if  a  bill  had  been  brought  for  specific  performance, 
and  it  had  appeared  that  the  agreement  had  been  pre- 
pared contrary  to  the  intent  of  the  defendant,  he  might 
have  said,  "  That  is  not  the  agreement  meant  to  have 
been  signed."  Such  a  case  is  left  as  it  was  by  the  statute  : 
it  does  not  say,  that  a  written  agreement  shall  bind,  but 
that  an  unwritten  agreement  shall  not  h\nd(u).  And 
nearly  the  same  observations  upon  the  negative  words  of 
the  statute,  were  made  by  the  Lord  Chief  Baron  Skinner, 
in  the  great  case  of  Rann  and  Hughes(.T). 

(*)But  if  parties  enter  into  an  agreement  which  is  cor- 
rectly reduced  into  writing,  and  at  the  same  time  add 
a  term  by  parol,  equity  cannot  look  out  of  the  agreement, 
although  the  person  insisting  upon  the  parol  agreement 

(<)   Hosier  r.   Read,  9   Mod.   86.     I   hnve  searched   the   Register's 
books  for  this  case  without  success. 
(«)  1  Scho.  &  Lef.  Rep.  39. 
(x)   7  Term  Rep.  3.50,  n. 
VOL.  J.  22  (*142) 


170 


OF  PAROL  EVIDENCE. 


is  a  defendant,  and  sets  it  up  as  a  bar  to  the  aid  of  the 
Court  in  favor  of  the  plaintiff. 

Thus,  in  Omerod  v.  Hardnian(i/),  the  vendor  filed  a  bill 
for  a  specific  performance.  It  was  not  mentioned  in  the 
written  agreement  at  what  time  the  purchaser  was  to  take 
possession  of  the  estate  ;  but  the  purchaser,  the  defendant, 
offered  parol  evidence  to  show  that  it  was  at  the  same 
time  agreed,  though  not  made  part  of  the  written  agree- 
ment, that  he  should  be  let  into  possession  at  a  stated 
time  ;  and  he  resisted  a  performance  of  the  agreement,  on 
the  ground  of  possession  not  having  been  delivered  to  him 
according  to  the  parol  agreement.  Mr.  Justice  Chambre 
objected  to  the  evidence  being  read.  He  said,  that  it  was 
urged  for  the  defendant,  that  evidence  may  be  read  where 
the  parol  agreement  is  not  inconsistent  with  the  written 
agreement.  This,  (that  is,  the  parol  agreement,  in  the 
case  before  him,)  he  added,  was  to  further  the  written 
agreement,  and  to  secure  what  was  through  carelessness 
omitted  to  be  provided  for  in  the  written  agreement,  viz. 
delivery  of  possession,  according  to  the  custom  of  the 
country.  Mr.  Baron  Graham  said,  that  the  parol  agree- 
ment could  only  be  admitted  where  the  written  agreement 
was  not  drawn  according  to  the  intention  of  the  parties  at 
the  time.  You  cannot  by  parol  add  any  thing  to  what 
was  the  real  agreement  at  the  time,  after  that  has  been 
correctly  reduced  into  writing.  And  he  entirely  agreed 
with  Mr.  Justice  Chambre,  that  the  parol  could  not  be 
made  to  form  part  of  the  written  agreement(88). 

(i/)  5  Ves.  jun.  722. 

(88)  See  Thompson  v.  Kdcham,  8  Johns  Rep.  146.  2d  edit.  Fitz- 
hugh  V.  Rtmyon,  8  Johns.  Rep.  292.  2d  edit.  Staclqjole  v.  Jlrnold,  1 1 
Mass.  Rep.  27.  Movan  v.  Hmjs,  1  Johns.  Ch.  Rep.  339.  Stevens 
V.  Cooper,  1  Johns.  Ch.  Rep.  426.  Snyder  v.  Snyder,  6  Binn.  483. 
Streator  v.  Jones,  1  Murphy,  449.  Smilh  v.  Williams.,  1  Murphy,  426. 
S.  C  1  Car.  Law  Rep.   263.     Dickerson   v.   DicJcerson,  1    Car.   Law 


OF  PAROL  EVIDENCE. 


171 


Lord  Hardwicke  is  reported(2:)  to  have  said,  that 
(*)a  plaintiff  seeking  a  specific  performance  might  enter 
into  parol  evidence  to  show  that  the  defendant  was  to  pay 
the  rent  clear  of  taxes,  no  mention  being  made  of  taxes 
in  the  agreement ;  because  it  was  an  agreement  executory 
only,  and  as,  in  leases,  there  were  always  covenants  re- 
lating to  taxes,  the  Master  would  inquire  what  the  agree- 
ment was  as  to  taxes,  and  therefore  the  proof  would  not 
be  a  variation  of  the  agreement.  And  this  extra-judicial 
opinion  appears  to  have  been  approved  of  by  two  en- 
lightened Judges(«),  one  of  whom(6)  laid  it  down,  that 
parol  evidence  was  admissible  to  prove  collateral  matters, 
concerning  which  nothing  was  said  in  the  agreement,  as 
who  was  to  put  the  house  in  repair,  or  the  like. 

But  notwithstanding  these  dicta,  it  has  been  expressly 
decided,  that  parol  evidence  of  even  collateral  matters, 
such  as  the  payment  of  taxes,  &;c.  which  are  of  the 
essence  of  the  agreement,  is  inadmissible  both  at  law  and 

[z)  3  Atk.  389,  390  ;  but  see  4  Bro.  C.  C.  518  ;  6  Ves.  jun.  335. 
n.     1  Scho.  &  Lef,  Rep.  38. 

(a)  See  2  Blackst.  1250  ;  7  Yes.  jun.  221. 
(6)   Mr.  Justice  Blackstone. 

Rep.  262.     Sessions  v.  Barjield,  2  Bay,  94.     Jackson  v.  Sill,  11  Johns. 
Rep.  201. 

In  Slackpole  r.  Arnold,  it  was  decided  that  want  of  consideration  in 
a  promissory  note  might  be  shown  by  parol.  This  seems  prima  facie 
repugnant  to  the  general  rule  respecting  written  contracts  ;  but  upon 
examination  of  the  cases  in  which  the  evidence  has  Jbeen  admitted  it 
will  appear  that  they  all  rest  upon  fraud,  or  upon  a  failure  of  the  con- 
sideration, or  upon  some  illegality  in  the  transaction  ;  all  of  which  may 
be  proved  without  explaining  or  varying  the  terms  of  (he  contract.  In 
Bowers  v.  Ilurd,  10  Mass.  427,  it  is  stated,  that  to  a  promissory  note, 
in  which  value  is  acknowledged  to  have  been  received,  it  cannot  be  ob- 
jected in  deference,  between  the  original  parties,  that  there  was  in  fact 
no  consideration.  But  in  subsequent  cases,  the  same  court  have  con- 
sidered that  opinion  as  untenable.  Hill  v.  Buckrainster,  5  Pick.  391 ; 
S.  P.     6  ib.  427. 

(*143) 


172 


OF  PAROL  EVIDENCE. 


in  equity.  Thus,  in  Richt;.  Jackson(c),  it  appeared  that 
William  Stiles  and  William  Jackson  entered  into  a  treaty 
for  the  lease  of  a  house  belonging  to  Stiles,  and  in  a  con- 
versation between  them  on  the  subject,  Jackson  offered 
80/.  a  year  rent,  and  that  he  would  pay  all  the  taxes, 
which  Stiles  agreed  to  accept.  An  agreement  was  drawn 
up  by  Jackson,  in  his  own  hand-writing,  in  which  no 
notice  was  taken  of  taxes.  Rich,  who  claimed  under 
Stiles,  refused  to  execute  a  lease  unless  the  rent  was 
made  payable  clear  of  taxes,  and  Jackson,  the  defendant, 
who  claimed  under  William  Jackson,  refused  to  accept 
such  a  lease.  Jackson  having  paid  some  money  for  land- 
tax,  brought  an  action  in  the  Court  of  Common  Pleas  for 
(*)the  recovery  of  it,  the  plaintiff  having  refused  to  de- 
duct it  in  the  payment  of  the  rent.  The  cause  was  tried 
at  Guildhall,  before  Lord  Rosslyn,  then  Lord  Chief  Justice 
of  the  Common  Pleas.  The  defendant  was  suffered  to 
give  parol  evidence  of  the  real  agreement,  and  his  Lord- 
ship gave  credit  to  the  veracity  of  the  witnesses,  notwith- 
standing which  he  rejected  the  evidence,  and  directed 
a  verdict  to  be  given  for  Jackson,  with  costs  ;  and,  upon 
'SffSppfeatton  to  the  ^Court^or6onTm6n  Pleas,  the  Court 
approved  of  the  verdict,  and  refused  a  rule  to  show  cause 
why  the  same  should  not  be  set  aside(89). 

In  this  branch  of  the  case,  therefore,  the   point  was 

(c)  4  Bro.  C.  C.  614  ;  6  Ves.  jun.  334,  n. 


(89)  See  Parhhust  v.  Van  Cortlandt,  1  Johns.  Ch.  Rep.  273.  S.  C. 
on  appeal,  14  Johns.  Rep.  15.  Gilpins  v.  Consequa,  1  Peters'  Rep. 
85,  87.  O'Hara  v.  Hall,  4  Dall.  340.  Wolf  v.  Caroihers,  3  Serg.  & 
R^wle,  240.  JVallace  v.  Baher,  1  Binn.  610.  And  see  JSP  Kinney  v. 
Leacock,  1  Serg.  &  Rawle,  27.  Marshall  v.  Sjjrott,  Addis.  361. 
Bruce  V.  Barber,  3  Conn.  Rep.  9.  But  the'nile  of  law,  that  all  pre- 
vious negotiations  are  merged  in  the  written  contract,  applies  only  to  the 
parties  to  the  deed.  Strong  v.  Glascoic,  1  Cor.  Law.  Rep.  279. 
Hawkins  v.  Hawkins,  Id.  496.  See  also,  Lexms  v.  Gray,  1  Mass. 
Rep.  297. 
(*144) 


OF  PAROL  EVIDENCE. 


173 


solemnly  decided  in  a  court  of  law,  and  the  same  deter- 
mination was  afterwards  made  upon  the  same  case  in 
a  court  of  equity.  Rich  being  defeated  at  law,  filed  his 
bill  for  a  specific  performance  of  the  agreement,  varied  by 
the  parol  evidence  ,•  and  the  cause  came  on  to  be  heard 
before  Lord  Rosslyn,  then  Lord  Chancellor,  who  said, 
that  the  prior  conversations,  and  the  manner  of  drawing 
up  the  agreement  by  one  party,  and  signing  it  by  another, 
would  have  no  influence.  The  real  question  was,  whether 
in  equity,  any  more  than  at  law^,  the  evidence  ought  to  be 
admitted  ;  whether  there  is  any  distinction  in  a  court  of 
equity,  where  a  party  comes  to  enforce  a  written  agree- 
ment by  obtaining  a  more  formal  instrument,  and  to  add, 
in  doing  that,  a  term  not  expressed  in  the  written  agree- 
ment, and  of  such  a  nature  as  to  bear  against  the  written 
agreement.  He  had  looked  into  all  the  cases,  and  could 
not  find  that  the  Court  had  ever  taken  upon  itself,  in 
executing  a  written  agreement  by  a  specific  performance, 
to  add  to  it  by  any  circumstance  that  parol  evidence 
could  introduce.  And  he  accordingly  dismissed  the  bill, 
but  without  costs. 

Indeed  Lord  Rosslyn  appears  to  have  made  a  similar 
(*)decision  in  a  case  prior  to  that  of  Rich  v.  Jackson. 
The  case  to  which  I  allude  is  Jordan  v.  Sawkins(J)  ; 
where  a  bill  was  filed  for  a  specific  performance  of  a  lease, 
and  it  was  stated,  that  there  was  a  memorandum  annexed 
to  the  original  agreement,  that  the  tenant(I)  was  to  pay 
the  land-tax  (which,  it  must  be  presumed,  was  not  signed, 
and  was  therefore  only  tantamount  to  a  parol  agreement). 
The  cause  was  heard  before  the   Lords  Commissioners 

(d)  Jordan  v.  Sawkins,  3  Bro.  C.  C.  388  ;  1  Ves.  jun.  402  ;  and 
see  O'Connor  v.  Spaight,  1  Scho.  &  Lef.  305  ;  and  see  the  cases  infra, 
as  to  the  discharge  of  a  parol  agreement. 

(I)  In  the  Report,  the  name  of  the  landlord  is,  by  mistake,  printed 
for  that  of  the  tenant. 

(*145) 


IY4  OF  PAROL  EVIDENCE. 

Eyre,  Ashhurst,  and  Wilson,  who  decreed  a  performance 
of  the  contract  with  the  variation,  that  it  was  to  be  at 
a  clear  rent  of  40  /.  ivithoui  deducting  land-tax.  The  cause 
was  re-heard  before  Lord  Rosslyn,  who  said,  that  if  the 
agreement  had  been  carried  into  execution  as  it  originally 
stood,  the  landlord  must  have  paid  the  land-tax.  The 
Court  could  not  specifically  perform  an  agreement  with 
a  variation,  and  he  therefore  reversed  the  decree,  and  dis- 
missed the  bill. 

As  a  term  agreed  upon  by  parol  cannot  be  added  to 
a  written  agreement,  by  a  parity  of  reason  a  written  agree- 
ment cannot  be  varied  by  parol(90). 

This  was  decided  by  Lord  Thurlow  in  a  branch  of  the 
last-mentioned  case(e).  It  appeared  that  a  lease  was 
agreed,  by  writing,  to  be  granted  of  a  house  for  twenty- 
one  years,  to  commence  from  the  21st  of  April  1791,  and 
that  it  was  afterwards  agreed  by  parol,  that  the  lease 
should  commence  on  the  24th  of  June  instead  of  the 
21st  of  April.  To  a  bill  filed  by  the  tenant  for  a  specific 
performance  of  the  written  agreement,  varied  by  the  parol 

(e)   See  7  Ves.  jun.  133. 

(90)  See  Stevens  v.  Cooper,  1  Johns.  Ch.  Rep.  425.  JWTeer  v. 
Sheppurd,  1  Bay,  461.  Dickerson  v.  Dickerson,  1  Car.  Law  Rep. 
262.  See  also,  Fleming  v.  Gilbert,  3  Johns.  Rep.  528.  Keating  v. 
Price,  1  Johns.  Cas.  22.  Hasbrouck  v.  Tappen,  15  Johns.  Rep.  200. 
Divight  V.  Pomeroy,  17  Mass.  Rep.  303,  325. 

An  alteration  or  addition  in  a  deed,  without  the  consent  of  parties, 
will  render  it  void  ;  but  if  an  erasure  be  made,  as  by  striking  out  an  old 
obligor,  and  adding  a  new  one,  by  consent  of  all  parties,  this  dees  not, 
of  itself,  avoid  (he  deed  :  whether  the  alteration  or  erasure  be  made 
2Jrior  or  subseciuent  to  the  execution  of  the  deed  ;  and  such  consent  may 
be  proved  by  parol :  And  parol  evidence  will  be  let  in  to  shew  whether 
an  erasure  or  interlineation  on  the  face  of  a  deed,  has  been  made  under 
such  circumstances  as  the  law  will,  or  will  not  justify.  Speake  v.  Unit- 
ed States,  9  Cranch,  28,  37.  LIVINGSTON,  J.,  dissenting.  Parol 
evidence  not  admissible  to  shew  an  erasure  or  alteration  in  the  entry- 
book  of  the  surveyor  general.     Kerr  v.  Porter,  1  Ten.  Rep.  16. 


OF  PAROL  EVIDENCE.  ]75 

agreement,  the  statute  of  frauds  was  pleaded,  and  Lord 
(*) Chancellor  Thurlow  held,  that  the  different  period  of 
commencing  the  lease  made  a  material  variation,  as  it 
gave  the  estate  from  the  ov^^ner  for  so  many  months  long- 
er, and  therefore  he  allowed  the  plea. 


The  rule  of  the  law  is,  nihil  tarn  conveniens  est  naturali 
cequitati,  unumquodque  dissohi  eo  ligamine  quo  ligatum 
est :  and  therefore,  in  general,  as  we  have  seen,  an  agree- 
ment in  writing  cannot  be  controlled  by  averment  of  the 
parties,  as  it  would  be  dangerous  to  admit  such  nude  aver- 
ments against  matter  in  writing(y).  This  was  an  imper- 
ative rule,  previously  to  the  statute  of  frauds  ;  and  the 
statute  required  that  "  all  agreements  upon  any  contract  or 
sale  of  lands,  &c.  should  be  in  writing."  Now,  as  Lord 
Hardwicke  observed,  an  agreement  to  wave  a  purchase 
contract,  is  as  much  an  agreement  concerning  lands  as 
the  original  contract(^)  ;  notwithstanding  which,  it  is 
universally  considered,  that  an  agreement  in  writing  con- 
cerning land  may  be  discharged^  although  it  cannot  be 
varied  by  parol(A^).  And  in  a  late  case,  where  all  the 
authorities  were  mentioned,  but  in  which  it  was  not  ne- 
cessary to  decide  the  point(«),  the  Master  of  the  Rolls 
appeared  to  consider  that  a  written  agreement  might  be 
abandoned  by  parol(91). 

(/)  Countess  of  Rutland's  case,  5  Co.  25  b  ;  Blemerhasset  v.  Pier- 
son,  3  Lev.  234. 

ig)    2  Eq.  Ca.  Abr.  33. 

{h)  1  Yes.  jun.  404  ;  4  Bro.  C.  C.  519  ;  6  Ves.  jun.  337,  n.  ;  9 
Ves.  jun.  250  ;  3  Wooddes.  428,  s.  iv.  ;  Rob.  on  Stat,  of  Frauds,  89  ; 
and  Inge  v,  Lippingwell,  2  Dick.  469  ;  but  see  Kaye  v.  Waghorn,  1 
Taunt.  428. 

(«■)  Price  1).  Dyer,  MS.  Rolls  ;  S.  C.  17  Ves.  jun.  356,po»<. 


(91)  Where  lands  have  been  sold  and  conveyed,  and  the  parties, 
afterwards,  agree  by  parol,  to  rescind  the  contract,  and  the  conveyances 
were  given  up  in  pursuance  of  such  agreement,  but  by  accident,  the 

(*146) 


176 


OF  PAROL  EVIDENCE. 


The  first  case  on  this  head,  is  a  short  note  in  Vernon(A^), 
where  the  precise  point  occurred,  and  the  Lord  Keeper 
held,  that  the  agreement  might  be  discharged  by  parol, 
(*)and  therefore  dismissed  the  bill,  which  was  brought  to 
have  the  agreement  executed  in  specie.  The  next  case 
is  reported  by  Viner(/)  :  A.  leased  a  house  to  B.  for 
eleven  years,  and  was  to  allow  201.  to  be  laid  out  in 
repairs ;  the  agreement  was  reduced  into  writing,  and 
signed  and  sealed  by  both  parties.  B.  repaired  the 
house,  and  finding  it  to  take  a  much  greater  sum  than 
the  20/.,  told  A.  of  it,  and  that  he  would  nevertheless 
go  on  and  lay  out  more  money  if  he  would  enlarge  the 
term  to  twenty-one  years,  or  add  fourteen,  or  as  many  as 
B.  should  think  fit.  A.  replied,  that  they  would  not  fall 
out  about  that,  and  afterwards  declared  that  he  would 
enlarge  the  term,  without  mentioning  the  term  in  certain. 
The  question  was,  whether  this  new  agreement,  made  by 
parol,  which  varied  from  the  written  agreement,  should 
be  carried  into  execution,  notwithstanding  the  statute  of 
frauds.  The  Master  of  the  Rolls  said,  that  before  the 
statute,  a  written  agreement  could  not  be  controlled  by 
a  parol  agreement,  contrary  to  it,  or  altering  it ;  but  this 

{k)   Gorman  v.  Salisbury,  1  Vern.  240.     I   could  not  discover  any 
trace  of  this  cause  in  the  Register's  book. 
(/)  Anon.  5  Vin.  522,  pi.  38 ;   4  Geo. 

notes  for  the  purchase  money,  were  not  given  up  ;  it  was  held,  in  an 
action  on  the  notes,  that  parol  evidence  of  the  rescission  of  the  con- 
tract, was  not  admissible,  at  law.  Sably  v.  Sandifie,  2  Rep.  Con.  Ct. 
445.  The  same  principle  was  recognized  in  Botsford  and  JMorehouse^ 
4  Conn.  Rep.  550. 

See  Stevens  v.  Cooper,  1  Johns.  Ch.  Rep.  429,430.  The  Chancel- 
lor, in  giving  his  opinion  in  this  case,  remarking  upon  the  principle  that 
an  agreement  in  writing  concerning  lands,  may  be  discharged  by  parol, 
says,  that  "  the  evidence  in  such  cases  is  good  only  as  a  defence  to  a 
bill  for  a  specific  performance ;  and  is  totally  inadmissible,  at  law  or 
equity,  as  a  ground  to  compel  a  performance  in  specie."  See  also, 
Botsford  v.  Burr,  2  Johns.  Ch.  Rep.  405. 

■(*147) 


OF  PAROL  EVrDENCE. 


177 


was  a  new  agreement,  and  the  laying  out  the  money  was 
a  part-performance  on  one  part,  and  ought  to  be  carried 
into  oxpcntion  ;  and  built  his  decree  on  these  cases :  fust, 
where  a  parol  agreement  was  for  a  building  lease,  and 
before  it  was  reduced  into  writing,  the  lessee  began  to 
build,  and  after  differing  on  the  terms  of  the  lease,  the 
lessee  brought  a  bill,  and  the  lessor  insisted  on  the  statute 
of  frauds ;  the  Lord  Keeper  dismissed  the  bill,  but  the 
plaintiff  was  relieved  in  Dom.  Proc. :  and  the  second 
was  a  case  in  Lord  Jefferies's  time. 

Then  came  the  case  of  Buckhouse  and  Crossbj,  before 
Lord  Hardwicke(m),  where,  to  a  bill  filed  by  a  purchaser 
for  a  specific  performance,  the  vendor  insisted  the  con- 
tract had  been  discharged  by  parol,  and  the  case  of 
(*)Goman  v.  Salisbury  was  cited  by  his  counsel,  as  an 
authority  in  his  favor.  The  Lord  Chancellor,  under  the 
circumstances,  decreed  for  the  plaintiff,  with  costs ;  and 
declared,  that  though  he  would  not  say  that  a  contract 
in  writing  would  not  be  waved  by  parol,  yet  he  should 
expect,  in  such  a  case,  very  clear  proof;  and  the  proof,  in 
the  present  case,  he  thought  very  insufficient  to  discharge 
a  contract  in  writing  ;  and  observed,  that  the  statute  of 
frauds  and  perjuries  requires  that  "all  contracts  and 
agreements  concerning  land  should  be  in  writing."  Now, 
an  agreement  to  wave  a  purchase  contract  is  as  much 
an  agreement  concerning  lands  as  the  original  contract. 
However,  he  said,  there  was  no  occasion  now  to  deter- 
mine this  point. 

And,  in  another  case.  Lord  Hardwicke  is  reported  to 
have  said,  that  it  was  certain  that  an  interest  in  land  could 
not  be  parted  with,  or  waved  by  naked  parol,  without 
writing ;  yet  articles  might,  by  parol,  be  so  far  waved, 
that  if  the  party  came  into  equity  for  a  specific  execution, 
such  parol  waver  would  rebut  the  equity  which  the  party 

(wi)  2  Eq.  Ca.  Abr.  32,  pi.  44  ;   10  Geo.  II. 

VOL.   1.  23  (*14S) 


178 


OF  PAROL  EVIDENCE. 


before  had,  and  prevent  the  Court  from  executing  them 
specifically(w)(92J. 

The  case  of  Legal  v.  Miller(o),  comes  next  in  point  of 
time.  The  agreement  was  for  taking  a  house  at  32/.  per 
annum,  and  part  of  the  agreement  was,  that  the  owner 
should  put  the  house  in  repair.  It  was  afterwards  dis- 
covered not  to  be  worth  while  barely  to  repair  the  house, 
but  better  to  pull  it  down ;  and,  therefore,  without  any 
alteration  in  the  written  agreement,  the  house  was  pulled 
down  by  consent  of  the  tenant,  apprised  of  the  great 
expense  it  would  be  to  the  landlord  ;  and  an  agreement 
was  made  by  parol  only,  on  the  part  of  the  tenant,  to  add 
(*)8/.  per  annum  to  the  32/.  The  tenant  brought  a  bill 
for  specific  performance,  on  the  foot  of  the  written  agree- 
ment, by  which  he  was  to  pay  only  the  32/.  rent.  The 
defendant,  by  his  answer,  set  up  the  parol  agreement. 
Sir  John  Strange  said,  such  evidence  is  frequently  suf- 
fered to  be  read,  especially  to  rebut  such  an  equity  as 
now  insisted  on  by  the  bill :  as  where  the  agreement  is 
in  part  carried  into  execution,  parol  evidence  is  allowed 
to  prove  that ;  or  where  it  is  a  hard  agreement ;  and  the 
Court  may,  therefore,  decree  against  the  ivritten  agreement, 
as  in  1  Vern.  240,  (Goman  v.  Salisbury) ;  and  the  single 
question  being  here,  whether  the  Court  should  decree 
a  specific  performance  of  the  agreement  the  plaintiff 
insists  upon,  and  being  satisfied,  from  the  parol  evidence, 
that  it  should  not,  the  Court  must  dismiss  the  bill.  And 
in  the  subsequent  case  of  Pitcairne  v.  Ogbourne(/?), 
Sir  John  Strange  referred  to  this  decision,  and  approved 
of  it. 

(n)  Bell  V.  Howard,  9  Mod.  302  ;  and  see  Eaii  of  Anglesea  v.  An- 
nesley,  4  Bro.  P.  C.  421. 
(o)  2  Ves.  299. 
ip)  2  Ves.  375. 

(92)  See  Stevens  v.  Cooper,  1  Johns.  Ch.  Rh.  Rep.  430. 
(*149) 


OF  PAROL  EVIDENCE. 


179 


In  the  late  case  of  Price  v.  Dyer(^),  which  has  aheady 
been  mentioned,  where  a  parol  waver  of  a  written  agree- 
ment was  set  up  as  a  defence  to  a  specific  performance, 
Sir  William  Grant  was  of  opinion,  1st,  that  there  was 
not  an  abandonment  of  the  agreement,  but  merely  a 
variation  ;  and  2d,  that  as  the  variation  was  without 
consideration,  and  had  not  been  acted  upon,  it  was  not 
a  good  defence  to  the  plaintiff's  demand.  His  Honor, 
after  premising  that  the  original  written  agreement  was 
binding,  and  had  not,  in  his  opinion,  been  waved,  added, 
that  he  inclined  to  think  the  effect  of  a  clear  abandon- 
ment by  parol,  would  be  to  discharge  the  written  agree- 
ment. But  in  the  cases  cited,  the  parol  agreement  put 
an  end  to  the  transaction,  and  restored  the  parties  to  their 
original  situation.  Here  there  was  a  mere  variation.  The 
(*)question  then  was  as  to  the  variation.  Variations  act- 
ed upon,  as  in  Legal  v.  Miller,  would  be  a  bar  ;  that  is,  a 
fraud.  But  his  opinion  was,  that  verbal  variations  were 
not  a  sufficient  bar  where  the  situation  of  the  parties,  in 
all  other  respects,  remained  unaltered.  The  defendant 
had  lost  nothing ;  would  lose  nothing.  He  had  only 
lost  what  he  had  gratuitously  gained.  A  specific  per- 
formance of  the  original  agreement  was  decreed,  but 
without  costs. 

I  have  thought  it  of  importance  to  bring  all  the  cases 
which  I  have  met  with,  on  this  point,  fully  before  the 
reader,  who  will  not  fail  to  perceive,  that  in  every  case, 
except  that  in  Viner,  the  party  insisting  upon  the  parol 
agreement,  was  not  requiring  the  aid  of  the  Court,  but 
merely  set  up  the  agreement  as  a  bar  to  a  specific  per- 
formance ;  and  therefore,  in  strictness,  these  cases  belong 
to  the  class  before  discussed,  where  the  Court  will  admit 
the  evidence  to  rebut  the  plaintiff's  equity,  although  it 
would  be  inadmissible  as  a  ground  for   relief.     In  the 

(9)   MS.  Rolls;  S.  C.  17  Yes.  jiui.  356. 

(*160) 


230  0^  PAROL  EVIDENCE. 

case  in  Viner,  indeed,  the  person  relying  on  the  parol 
agreement  was  plaintiff;  but  the  new  agreement  was  in 
part  performed  by  him,  and  the  Master  of  the  Rolls  of 
that  day  expressly  founded  his  decree  on  that  ground. 
No  case  seems  to  go  beyond  that.  In  the  case  of  Price 
and  Dyer,  the  parol  agreement  was  not,  under  the  cir- 
cumstances, held  to  be  a  sufficient  defence. 

Whether  an  absolute  parol  discharge  of  a  written 
agreement,  not  followed  by  any  other  agreement  upon 
which  the  parties  have  acted,  can  be  set  up  even  as  a 
defence  in  equity,  seems  questionable.  The  result  of  the 
authorities  as  to  a  parol  variation,  appears  to  be, 

1st,  That  evidence  of  it  is  totally  inadmissible  at  law. 

2dly,  That  in  equity  the  most  unequivocal  proof  of  it 
will  be  expected. 

3dly,  That  if  it  be  proved  to  the  satisfaction  of  the 
(*)Court,  and  be  such  a  variation  as  the  Court  will  act 
upon,  yet  it  can  only  be  used  as  a  defence  to  a  bill  de- 
manding a  specific  performance,  and  is  inadmissible  as  a 
ground  to  compel  a  specific  performance,  unless, 

4thly,  There  has  been  such  a  part-performance  of  the 
new  parol  agreement,  as  would  enable  the  Court  to  grant 
its  aid  in  the  case  of  an  original  independent  agreement, 
and  then,  in  the  view  of  equity,  it  is  tantamount  to  a  writ- 
ten agreement. 

In  considering  the  point  under  discussion,  the  reader 
will  be  careful  not  to  confound  the  foregoing  cases  with 
the  case  of  Walker  v.  Constable(r).  There  the  original 
agreement  was  a  parol  agreement ;  and  the  question  was, 
whether,  being  abandoned,  parol  evidence  could  be  given 
of  it.  Lord  C.  J.  Eyre  held,  that  the  existence  and  the 
terms  of  the  agreement  must  be  proved  before  it  could  be 
proved  to  be  abandoned,  and   upon  that  it  was  sufficient 

(r)  2  Esp.  659  ;  1  Bos.  &  Pull.  306.     See  Adams  v.  Fairbain,  2 
Stark.  277. 
(*161) 


OP  PAROL  EVIDENCE. 


181 


to  say,  that  being  in  ivriting(l)  the  instrument  itself 
must  be  produced,  and  parol  evidence  of  it  was  inadmis- 
sible. 


II.  The  next  branch  of  our  subject,  although  the  most 
trite,  is  not  perhaps,  therefore,  less  difficult.  Lord  Chan- 
cellor Bacon  says(5),  there  are  two  sorts  of  ambiguities 
of  words,  the  one  is  ambiguitas  patens,  and  the  other 
latens.  Patens,  he  adds,  is  that  which  appears  to  be  am- 
biguous upon  the  deed  or  instrument ;  latens  is  that  which 
seems  certain,  and  without  ambiguity,  for  any  thing  that 
appears  upon  the  instrument,  but  there  is  some  collateral 
matter  out  of  the  deed  that  breeds  the  ambiguity. 

(*)  A  latent  ambiguity  may  be  assisted  by  parol  evidence, 
because  the  ambiguity  being  raised  by  parol,  may  fairly 
be  dissolved  by  the  same  means,  according  to  the  general 
rule  of  law(93).  Therefore,  if,  previously  to  the  statute, 
a  man  having  two  manors,  both  called  Dale,  had  con- 
veyed   the  manor  of   Dale  to  another,    evidence  might 

(«)   Max.  p.  82 ;   Reg.  23. 

(I)  That  is,  in  contemplation  of  law,  for  it  is  not  deemed  an  agree- 
ment unless  reduced  into  writing. 

(93)  See  Slackpoh  v.  Jlrnold,  11  Mass.  Rep.  27.  Cole  v.  fVcndell, 
8  Johns.  Rep.  90.  2d  edit.  Allen's  Les.  v.  Lyons,  MS.  Rep.  1  Whart. 
Dig.  238.  Poiccll  V.  Biddle,  2  Dail.  70.  Jackson  v.  Stanley,  10 
Johns.  Rep.  133.  See  Jackson  v.  Hart,  12  Johns.  Rep.  77.  and  Jack- 
son V.  Goes,  13  Johns.  Rep.  5J8.  ;  wherein  the  cases  of  Jackson  and 
Stanley  and  Jackson  and  Hart  are  reviewed.  See  Goddard  v.  Bulow, 
1  Nott  &  M'Cord,  45.  Elsivorth  v.  Buckmyer,  1  Nott  &  M'Cord, 
431.     Middleton  v.  Perry,  2  Bay,  539. 

But  parol  evidence  is  not  admissible  to  explain  or  contradict  the  plain 
and  obvious  meaning  of  words  in  a  deed.  O'Harra  v.  Hall,  4  Dall. 
340.  Hamilton  v.  Caicood,  3  liar.  &  M'llen.  437.  Paine  v.  JM'Inlier, 
1  Mass.  Rep.  G9.  See  Leland  v.  Slone,  10  Mass.  Rep.  459.  Hunt 
V.  Mams,  7  Mass.  Rep.  619.  Ross  v.  JVorvell,  1  Wash.  14.  See 
Dimond's  Les.  v.  Enock,  Addis.  356.  Eli  v.  Adams,  19  Johns.  Rep. 
313. 

(*162) 


|g2  OF  PAROL  EVIDENCE. 

have  been  given  to  prove  which  manor  was  intended  to 
pass(^),  and  such  evidence  is  still  admissible  :  this  has  been 
repeatedly  decided(w).  So,  on  the  same  principle,  parol 
evidence  is  always  received  to  show  what  is  parcel  or  not 
of  the  thing  conveyed(:r)(94).  And  if  an  agreement  re- 
fer to  a  plan  as  an  existing  document  upon  which  the  con- 
tract is  founded,  parol  evidence  is  admissible  for  the  pur- 
pose of  identifying  the  plan(?/). 

In  some  cases  a  latent  ambiguity  may  be  fatal.  Parol 
evidence  may  be  adduced  to  prove  the  ambiguity,  when 
none  sufficiently  satisfactory  can  be   offered    to  explain 

(f)  2  Ro.  Abr.  676,  pi.  11;  and  see  Lord  Cheney's  case,  6  Rep. 
68;  Altham's  case,  8  Rep.  165  a;  and  Harding  r.  Suffolk,  1  Cha. 
Rep.  74. 

(u)  Jones  V.  Newman,  1  Blackst.  63  ;  3  Wils.  276  ;  2  Atk.  239, 
240.  373  ;   1  Bro.  C.  C.  341. 

{x)  Quaintrell  v.  Wright,  Bunb.  274  ;  Longchamps  v.  Fawcett, 
Peake's  Ca.  71  ;  Doe  tj.  Burt,  1  Term  Rep.  701  ;  Anon.  1  Str.  96; 
but  where  there  is  property  to  satisfy  the  words  of  the  will,  it  cannot  be 
shown  by  parol  evidence  that  the  testator  meant  to  pass  some  not  with- 
in the  description.     See  Doe  v.  Oxenden,  3  Taunt.  147. 

(tj)   Hodges  V.  Horsfall,  1  Russ.  &  Myl.  116. 

(94)  See  Hatch  v.  Hatch,  2  Hayw.  32.  White  v.  Eagan,  1  Bay, 
247.     Middleton  v.  Perry,  2  Bay,  639. 

See  Coutts  v.  Craig,  2  Hen.  &  Munf.  618.  Doolittk  v.  Blahcley, 
4  Day,  265.  Snyder  v.  Snyder,  6  Binn.  483V  In  this  case,  it  was 
held,  that  parol  evidence  was  inadmissible  to  shew,  that  a  part  of  the 
land  granted,  was  excepted  out  of  the  grant. 

Upon  questions  relating  to  the  situation  and  boundary  of  lands  convey- 
ed, the  decisions  have  been  various  ;  in  some  of  the  states,  the  English 
common  law  rule  has  been  adopted,  and  in  others  not.  See  Loflen  v. 
Heath,  2  Hayw.  347.  Mageehan  v.  Mams'  Les.  2  Binn.  109.  Baker 
V.  Seekright,  1  Hen.  &  Munf.  177.  Francis  v.  Hazlerig,  1  Marsh. 
Ken.  Rep.  96.  See  Lawless  v.  Jones,  Idi.  17.  Helmy.  Small,  Hardin, 
369.  Middleton  v.  Perry,  2  Bay,  539.  While  v.  Eagan,  1  Bay,  247. 
As  to  conformity  to  the  common  law  rule,  see  Jackson  v.  Bowen,  I 
Caines'  Rep.  358.  Hamilton  v.  Caivood,  3  Har.  &  M'Hen.  437. 
Milling  v.  Crankfield,  1  M'Cord,  261. 


OF  PAROL  EVIDENCE. 


183 


it(z).  And  to  render  parol  evidence  admissible  in  these 
cases,  a  clear  latent  ambiguity  must  be  first  shown. — Ev- 
idence which  merely  raises  a  conjecture  is  insuffi- 
cient(a). 

But  although  a  latent  ambiguity  may  be  aided  by  parol 
evidence,  yet  a  patent  ambiguity  cannot  be  aided  by  ex- 
trinsic evidence,  because  that  would  in  effect  be  to  pass 
(*)vvithout  deed,  what  by  the  law  can  be  passed  by  deed 
only.  Of  this  Lord  Chancellor  Bacon  observes,  infinite 
cases  might  be  put ;  for  it  holdeth  generally,  that  all  am- 
biguity of  words,  by  the  matter  within  the  deed,  and  not 
out  of  the  deed,  shall  be  helped  by  construction(95),  or 
in  some  cases  by  election,  but  never  by  averment,  but 
rather  shall  make  the  deed  void  for  uncertainty(96). 

In  Mansell  v.  Price,  personal  estate  was  settled  in  trust 
for  Price  the  defendant,  and  Catherine  his  wife,  for  their 
lives,  and  the  life  of  the  survivor  of  them,  and  then  for 
their  issue,  with  a  power  to  the  wife  to  dispose  of  1,500/., 
part  of  the  monies,  to  any  persons  she  pleased.  She  ex- 
ercised this  power  by  giving  the  money  to  Sir  Edward 
Mansell,  in  trust  to  pay  1,000/.  to  A.,  when  she  should 
attain    twenty-one,  or    marry ;  but   if   she    died    before 

(z)  Thomas  v.  Thomas,  6  Term  Rep.  671. 

(a)  See  Lord  Walpole  v.  the  Earl  of  Cholmondeley,  7  Term  Rep. 
138. 

(95)  Patent  ambiguities  can  be  removed  only  by  a  sound  construc- 
tion of  the  words  of  the  deed.  Slorer  v.  Freeman,  6  Mass.  Rep.  435. 
King  V.  King,  7  Mass.  Rep.  496.  Revei-e  v.  Leonard,  I  Mass.  Rep. 
91.  Mumford  v.  Hallett,  1  Johns.  Rep.  433.  JMann  v.  Exrs.  of 
Mann,  1  Johns.  Ch.  Rep.  231.  Jackson  v.  Sill,  11  Johns.  Rep.  201. 
M'Dermot  v.  U.  S.  Ins.  Co.  3  Serg.  &  Rawle,  607.  Duncan  v.  Dun- 
can, 2  Yeates,  302.  Benezet  v.  JSV Clenachan,  cited  in  JWMina  v. 
Owen,  2  Dall.  173.  Little  v.  Henderson,  2  Yeates,  295.  Stith  v. 
Barnes,  1  Car.  Law  Rep.  491.  Hamilton  v,  Cawood,  3  Har.  & 
M'Hen.  437.  O'Harra  v.  Hall,  4  Dall.  340.  Harris  v.  Dinkins,  4 
Des.  60.     Dupree  v.  McDonald,  4  Des.  212. 

(96)   See  Rothinahler''s  Admx.  v.  Myers,  4  Des.  216. 

(*163) 


184 


OF  PAROL  EVIDENCE. 


twenty-one,  or  marriage,  then  it  should  be  to  such  uses 
as  B.  should  appoint.  And  the  other  500/.  she  directed 
to  be  paid  to  C,  in  exactly  the  same  terms  as  before.  The 
bill  was  filed  by  the  guardian  of  A.  and  C,  infants,  to 
have  the  money  paid,  and  to  be  put  out  for  them  to  have 
the  interest  thereof  immediately.  For  the  defendant 
Price,  it  was  insisted  that  he  was  entitled  to  the  interest 
of  1,500/.,  until  it  should  become  payable.  The  first 
question  was,  whether  parol  evidence  could  be  admitted 
to  explain  the  intention  of  Catherine  Price  what  should 
become  of  the  interest  till  the  times  of  payment ;  for  if 
that  could  be  admitted,  there  was  sufficient  to  prove 
the  husband  should  not  have  it.  And  the  Master  of  the 
Rolls  was  of  opinion  that  such  evidence  could  not  be 
read(6). 

(*)So  in  Kelly  v.  Powlet(c),  the  question  was,  whether 
plate  passed  under  a  bequest  of  household  furniture.  The 
drawer  of  the  will  said,  it  was  not  intended  ;  but  his  evi- 
dence was  refused,  and  the  plate  was  held  to  pass(97). 

Again,  in  a  case  in  the  Exchequer(f/),  it  appeared  that, 
by  an  act  of  parliament,  cast  plate-glass  was  directed  to  be 
squared  into  plates  of  certain  dimensions.  The  question 
was,  whether  certain  plates  were  in  the  shape  directed  by 
the  act.  The  Attorney-general  at  the  trial  produced  books 
explaining  the  process  and  terms  of  art  in  the  manufac- 
ture, and  the  defendants  offered  evidence  to  prove  the 

(S)  MS.  T.  Term,  8  &  9  Geo.  II. ;  and  see  Hart  v.  Durand,  8 
Anstr.  684  ;  Chamberlaine  v.  Chamberlaine,  2  Freem.  52 ;  Ulrich  v. 
Ditchfield,  MS.  2  Atk.  372,  where  the  evidence  was  not  received. 

(c)  1  Bro.  C.  C.  476,  cited  ;  Ambl.  605,  reported,  which  I  conceive 
has  overruled  Pendleton  v.  Grant,  1  Eq.  Ca.  Abr.  230,  pi.  2 ;  2  Vern. 
517  ;  and  see  1  Bro.  C.  C.  350,  351 ;  Seymour  v.  Rapier,  Bunb.  28; 
Doer.  Bland,  11  East,  441. 

(d)  Attorney-general  v.  the  Cast  Plate-Glass  Company,  1  Anstr.  39. 

(97)  See  Mann  v.  Exrs.  of  Mann,  1  Johns.   Ch.   Rep.  231.     See 
also,  1  Yeates,  432.     1  Gallis.  173. 
(*154) 


OF  PAROL  EVIDENXE.  j  OC 

teclinical  meaning  in  the  trade  of  the  word  squarins;  o^lass  ; 
tiie  evidence  was,  liowever,  refused,  and  a  verdict  found 
against  the  defendants :  and  upon  a  motion  for  a  new  trial. 
Lord  Chief  Baron  Eyre  said  :  In  explaining  an  act  of 
parliament,  it  is  impossible  to  contend  that  evidence  should 
be  admitted,  for  that  would  be  to  make  it  a  question  of 
fact,  in  place  of  a  question  of  law(98).  The  judge  is  to 
djrect  the  jury  as  to  the  point  of  law,  and  in  doing  so  must 
form  his  judgment  of  the  meaning  of  the  Legislature,  in 
the  same  manner  as  if  it  had  come  before  him  on  demurrer, 
when  no  evidence  ^\  ould  be  admitted.  Yet  on  a  demurrer 
a  judge  may  well  inform  himself  from  dictionaries  or 
books,  on  the  particular  subject  concerning  the  meaning 
of  any  word.  If  he  does  so  at  nisi  priiis,  and  shows  them 
to  the  jury,  they  are  not  to  be  considered  as  evidence,  but 
only  as  the  grounds  on  which  the  judge  has  formed  his 
opinion,  as  if  he  were  to  cite  any  authorities  for  the  point 
of  law  he  lays  down. 

(*)So  parol  evidence  is  inadmissible  to  restrain  the  legal 
operation  of  general  words  in  an  instrument.  Therefore 
it  cannot  be  admitted  to  prove,  that  a  particular  estate 
was  not  intended  to  pass  under  general  words  sufficient 
to  comprise  it(99). 

(98)  In  tho  case  of  JVrKeen  v.  Delancxfs  I.es.  6  Cianch,  22,  32., 
tlie  Supreme  Court  of  the  U.  S.  considered  themselves  bound  to  put  the 
same  construction  upon  the  words  of  an  act  of  assembly  as  had  been 
uniformly  given  by  the  state  courts  ;  but  if  the  construction  were  to  be 
given  for  the  first  time,  they  would  have  construed  the  statute  difTercnlly. 
See  Sleght  v.  Ilarishorn,  2  Johns.  Rep.  531.  13ut  whenever  a  ques- 
tion arises  as  to  the  construction  of  words,  qua  words,  parol  evidence 
cannot  be  admitted  to  explain  them.  J\'V Dermol  v.  U.  S.  Ins.  Co.  3 
Serg.  &  Rawle,  G09.  IJohncs  v.  Simons, '3  Des.  149.  Parol  evidence 
cannot  be  admitted  to  contradict  the  common  meaning  or  legal  import 
of  plain  words  in  a  will.     Sheltoii  v.  Shcllon,  1  ^N^ish.  53. 

(99)  See  Stith  v.  Barnes,  1  Car.  Law  Rep.  491.  Nor  can  (he 
meaning  and  operation  of  an  instrument  in  writing,  bo  extended,  or  en- 
larged  beyond  (he  plain  and  obvious  impoit  of  the  woids  used,  so  as  to 

VOL.  I.  24  (*156) 


186 


OF  PAROL  EVIDENCE. 


Thus  in  Davis?;.  Thomas(e),  a  husband  and  wife  being 
seized  of  settled  estates  in  the  county  of  Pembroke,  bought 
an  estate  in  the  same  county,  called  Rigman  Hill,  which 
was  conveyed  to  them,  and  the  survivor  in  fee.  The 
husband  having  prevailed  on  the  wife  to  join  with  him 
in  suffering  a  recovery  of  the  settled  estates,  in  order  to 
enable  him  to  mortgage  them,  gave  the  attorney  em- 
ployed to  suffer  the  recovery  a  particular  description  pf 
the  settled  estates,  which  did  not  comprise  Rigman  Hill ; 
and  it  clearly  appeared  from  several  circumstances,  that 
he  had  not  any  intention  to  comprise  that  estate,  the  title- 
deeds  of  which  were  in  his  wife's  custody.  The  attorney, 
fearful  of  not  comprising  the  whole  estate,  and  not  know- 
ing that  Rigman  Hill  had  been  purchased,  added  general 
words  sufficient  to  comprise  that  estate.  The  recovery 
was  suffered  to  the  use  of  the  husband  in  fee,  who  after- 
wards mortgaged  the  estate  by  the  same  description.  The 
husband  by  his  will  gave  all  his  estates  to  his  wife  for  life. 
She  survived  him,  and  after  her  death  the  heir  at  law  of 
the  husband  brought  an  ejectment  against  the  persons 
claiming  Rigman  Hill,  under  the  wife,  which  came  on  to 
be  tried  at  the  April  Great  Sessions  for  Pembrokeshire,  in 
1756.  Parol  evidence  was  offered  by  the  defendant,  to 
show  that  it  was  not  intended  to  comprise  Rigman  Hill  in 
the  recovery  and  mortgage  ;  but  it  was  refused,  and  the 
plaintiff  had  a  verdict. 

So  in  Shelling   v.   Farmer (y*),  where   to  a  release  in 

(e)  Reg.  Lib.  1757,  fol.  33,  34.  See  Thomas  i;.  Davis,  1  Dick, 
301,  ei  infra. 

(/)  1  Str.  646.  See  Strode  v.  Lady  Falkland,  2  Vein.  621  ;  3 
Cha.  Rep.  90  ;  and  Goodinge  v.  Goodinge,  1  Ves.  231. 


include  other  objects  ^jot  expressed  in  the  writing  itself:  Thus,  where 
receipts  were  given  by  the  heirs  of  an  estate,  to  the  administrator,  for 
their  shares  of  the  estate,  parol  evidence  cannot  be  admitted  (o  shew, 
that  it  was  the  intention  of  the  parties  to  release  their  interest  in  the 
real  estate  ;  especially,  where  the  money  received  was  greatly  inade- 
quate to  their  shares.     Harris  v.  DinkinSf  4  Des.  60. 


OF  PAROL  EVIDENCE.  j  o>j 

(*)pursuance  of  an  award,  the  plaintiff  would  have  called 
the  arbitrators  to  prove  that  they  refused  to  take  into  con- 
sideration a  particular  fact,  although  the  award  and  re- 
lease contained  general  words  sufficient  to  take  in  all. 
Ejre,  C.  J.  would  not  suffer  any  evidence  to  be  given  to 
contradict  the  dced(lOO). 

And  in  the  recent  case  of  Butcher  v.  Butcher(,^)  gen- 
eral ivords  in  a  release  were  held  not  to  extend  to  a  cer- 
tain bond  of  indemnity  :  and  Lord  Chief  Justice  Mans- 
field, at  Guildhall,  refused  to  admit  parol  evidence  to  show 
the  intention  of  the  releasor  to  release  the  bond(lOl). 
And  upon  a  motion  for  a  new  trial,  the  Court  of  Common 
Pleas  intimated  a  strong  opinion,  that  no  evidence  could 
be  admissible  to  explain  the  release,  since  the  doubt,  if 
any,  was  ambiguitas  patens ;  and  in  consequence  of  this 
intimation  the  counsel  for  the  plaintiff  declined  arguing 
the  case. 

But,  as  we  shall  presently  see,  the  effect  of  general 
words  may  be  restrained  in  a  court  of  equity,  on  the 
ground  of  mistake,  where  it  is  satisfactorily  proved. 

It  still  remains  to  observe,  that  courts  both  of  law  and 
equity  constantly  advert  to  the  situation  of  the  parties, 
&c.  in  order  to  enable  them  to  construe  ambiguous  or 
ill-penned  instruments,  although  parol  evidence  of  the 
intention  of  the  parties  could  not  be  received,  and  this 
has  been  sanctioned  by  a  leading  case  in  the  House  of 
Lords(/0(102). 

(^)   1  New  Rep.  113. 

(/t)  Sir  John  Eden  v.  the  Earl  of  Bute,  7  Bro.  P.  C.  745.  Sec 
Countess  of  Shelburne  r.  the  Earl  of  Inchiquin,  1  Bro.  C.  C.  338. 

(100)  See  De  Long  v.  Slanton,  9  Johns.  Rep.  38.  Munroe  v. 
Maire^  2  Caines'  Rep.  320.     Sessions  v.  Barjield,  2  Bay,  94. 

(101)  See  Parsons  v.  Hooker,  3  Johns.  Rep.  68. 

(102)  See  Ambler  v.   JS^orton,  4   Hen.  &  Munf.   23,      Kennon  v. 

JWRoberts,  1  Wash.  102.     She^iner  v.  Shermer's  Exrs.   1  Wash.  272. 

Dabncij  v.  Green,  4  Hen.  &  Munf.  101.     Gay  v.  Jlunl,  1  3Iiuph.  141. 

(*156) 


-I  go  OF  PAROL  EVIDENCE. 

In  one  case(z),  where  it  was  doubtful  whether  a  cove- 
nant for  renewal  extended  to  a  perpetual  renewal,  and  the 
parties  had  renewed  four  times  successively  under  the 
covenant,  Lord  Mansfield  and  the  other  Judges  of  the 
(*)King's  Bench  held,  that  the  parties  themselves  had  put 
a  construction  upon  the  covenant,  and  were  therefore 
bound  bj  it.  Lord  Alvanley,  who  was  in  the  cause,  said, 
when  Master  of  the  Rolls,  that  he  was  never  more 
amazed  than  at  this  decision,  and  that  Mr.  Justice  Wilson, 
who  argued  with  him,  was  astonished  at  \t(j)  ;  and  his 
Lordship  more  than  once  expressed  his  marked  dis- 
approbation of  this  doctrine(A;).  Lord  Eldon(/),  and 
Sir  Wm.  Grant(?/i),  have  both  also  dissented  from  it ; 
and  Kord  C.  J.  Mansfield,  in  a  late  case,  observed,  that  it 
was  a  case  which  had  been  impeached  upon  all  occa- 
sions(w).  And  it  appears  to  be  now  clearly  settled,  that 
in  the  construction  of  an  agreement  or  deed,  the  acts  of 
the  parties  cannot  be  taken  into  consideration(o)(103). 

Where,  however,  the  words  of  an  ancient  siatute  or  "in- 
strument are  doubtful,  contemporaneous  usage,  although  it 

(i)  Cook  V.  Booth,  Cowp.  819 ;  and  see  Blackst.  1249  ;  1  New 
Rep.  42.      See  Peake  on  Evid.  eh.  2. 

( j)  Baynham  v.  Guy's  Hospital,  3  Ves.  295  ;  and  see  2  Ves.  jun. 
448. 

(k)  See  Eaton  v.  Lyon,  3  Ves.  jun.  690. 

(/)  See  Iggulden  v.  May,  9  Ves.  jun.  326. 

(m)  See  Moore  v.  Foley,  6  Ves.  jun.  232. 

(»)  See  2  New  Rep.  452. 

(o)  See  Clifton  v.  Walmsley,  5  Term  Rep.  664  ;  and  see  Iggulden 
V.  May,  7  East,  237. 

Powell  V.  Bicldle,  2  Dall.  72.  Possession  of  land  nnay  be  resorted  to, 
in  order  to  explain  the  intention  of  parties,  where  the  words  of  the 
deed  are  equivocal.  Livingston  v.  Ten  Broeck,  16  Johns.  Rep.  14. 
Per  SPENCER,  J. 

(103)  See  Souverbije  v.  Jlrden,  1  Johns.  Ch.  Rep.  240.  Revere  v. 
Leonard,  1  Blass.  Rep.  93 ;  and  see  Cortehjou  v.  Van  Brundt,  2  Johns. 
Rep.  357. 

(^57) 


Mi 


OF  PAROL  EVIDENCE. 


189 


cannot  overturn  the  clear  words  of  the  instrument,  will  be 
admitted  to  explain  it(104)  ;  for  jus  et  norma  loquendi  is 
governed  by  usage,  and  the  meaning  of  things  spoken  or 
written  must  be  as  it  hath  constantly  been  received  to  be 
by  common  acceptation Q;).  This  has  been  determined  in 
many  cases,  and  such  evidence  accordingly  received(<y). 
And  in  a  late  case  on  this  subject.  Lord  Ellenborough 
(*)said,  it  was  in  constant  practice  at  nisi  prius  to  receive 
evidence  of  usage  to  explain  doubtful  words  in  old  instru- 
ments ;  and  it  would  be  difficult  to  show  any  just  ground 
of  distinction  between  the  information  which  a  Jud^e 
might  receive  to  aid  his  judgment  in  bank  and  at  nisi 
]}rlus(r). 


III.  The  last  division  of  our  subject  relates  to  the  juris- 
diction of  equity,  in  correcting  mistakes  and  fraudulent 
omissions  in  agreements  and  deeds(I)(105). 

(p)  Sheppaid  v.  Gosnold,  Vaiigh.  169. 

(9)  Rex  V.  Varlo,  Cowp.  246  ;  Gape  v.  Handley,  3  Term  Rep.  228, 
n.  ;  Blankley  v.  Winstanley,  3  Term  Rep.  279 ;  Rex  v.  Bellringer,  4 
Term  Rep.  810  ;  Rex  v.  Miller,  6  Term  Rep.  268  ;  and  see  Attorney- 
general  I'.  Parker,  2  Atk.  676 ;  Attorney-general  v.  Forster,  10  Ves. 
jun.  335  ;  Kitchin  1;.  Bartch,  7  East,  53  ;  Bailiffs,  &c.  of  Tewkesbury 
V.  Bricknell,  2  Taunt.  120. 

()•)  Rex  r.  Osbourne,  4  East,  327 ;  and  see  Stammers  v.  Dixon,  7 
East,  200. 

(I)  Even  at  law  the  palpable  mistake  of  a  word  will  not  defeat  the 
intention  of  the  parties.  In  a  case  in  the  Common  Pleas,  where  the 
condition  of  a  bond  was,  that  it  should  be  void  if  the  obligor  did  not 
pay  ;  and  performance  being  pleaded  on  the  ground  of  literal  expression, 

(104)  See  Livingston  v.  Ten  Broecl;  16  Johns.  Rep.  14.  Evi- 
dence of  usage  is  not  admissible  to  explain  the  language  of  a  deed  not 
ambiguous  or  equivocal.     Cortehjou  v.  Van  Brimdt,  2  Johns.  Rep,  357. 

(105)  It  is  well  settled,  that  courts  of  equity  will  relieve  against 
mistakes  in  agreements.  IViscv  v.  Blackleij,  1  Johns.  Ch.  Rep.  607 
Gillespie  V.  JV/ooM,  2  Johns.  Ch.  Rep.  585.  Kcissclbrackv.  Livinnston^ 
4  Johns.  Ch.  Rep.  144.     Barndollar  v.    Tate,  1  Serg.  &    Rawle,  160. 

(*168) 


190 


OF  PAROL  EVIDENCE. 


In  Heiikle  v.  the  Royal  Exchange  Assurance  Office(5), 
Lord  Hardwicke  said,  that  no  doubt  but  equity  had  juris- 
diction to  relieve  in  respect  of  a  plain  mistake  in  contracts 
in  writing,  as  w^ell  as  against  frauds  in  contracts ;  so 
that  if  reduced  into  writing  contrary  to  the  intention  of 
the  parties,  on  proper  proof  that  would  be  rectified  ;  he 
thought,  however,  that  in  these  cases  there  should  be  the 
strongest  proof  possible.  In  a  case  which  was  much 
agitated  before  Lord  Thurlow,  he  laid  down  the  rule  with 
great  latitude,  that  if  a  mistake  appears,  it  is  as  much  to 
be  rectified  as  fraud  (^).  So  in  another  case  before  the 
(*)same  Chancellor,  he  said  that  he  thought  it  impossible 
to  refuse,  as  incompetent,  evidence  which  went  to  prove 
that  the  words  taken  down  were  contrary  to  the  concur- 
rent intention  of  all  parties.     To  be   sure,  he  added,  it 

{s)  1  Ves.  317. 

{t)  Taylor  v.  Radd,  6  Ves.  jun.  595,  cited. 

the  Court  held  the  plea  bad.  Anon.  Dougl.  384,  cited,  2d  edition.  See 
1  Dow,  147.  It  seems  clearly  settled,  that  words  evidently  omitted  in 
a  will  by  mistake  may  be  supplied,  both  at  law  and  in  equity,  Tollett 
V.  Tollett,  Ambl.  194  ;  Corytont).  Hellier,  2  Bur.  923,  cited  ;  and  Doe 
V.  Micklem,  6  East,  486  ;  see  Lane  v.  Goudge,  9  Ves.  jun.  225  ;  Hel- 
lish V.  Mellish,  and  Phillips  v.  Chamberlain,  4  Ves.  jun.  45,  51  ;  but 
however  evident  the  mistake  may  be,  the  words  will  not  be  supplied 
if  the  testator's  manifest  intention  would  be  defeated  by  the  insertion  of 
them.     Chapman  v.  Brown,  3  Burr.  1626.     See  2  Ves.  jun.  365. 

Smiih  V.  Williams,  1  Murph.  426.  Middleton  v.  Perrij,  2  Bay,  639. 
Wliite  V.  Eagan,  1  Bay,  247.  Geer  v.  JVhids,  4  Des.  85.  Wash- 
burn V.  JSlerrills,  1  Day,  139.  Peters  v.  Goodrich,  2  Conn.  Rep.  146. 
JVlead  V.  Johnson,  2  Conn.  Rep.  592.  Argenbright  v.  Campbell,  3 
Hen.  &  iMunf.  144.  In  this  case,  a  mistake  in  one  writing  was  cor- 
rected by  another,  to  which  it  referred.  In  Christ  v.  Diffebach,  1  Serg. 
&  Rawle,  465.,  TILGHMAN,  Ch.  J.  said,  "  It  may  be  laid  down  as 
settled  law,  that  parol  evidence  is  admissible  in  cases  of  fraud  and  of 
plain  mistake  in  drawing  a  writing." 
(*169) 


OF  PAROL  EVIDENCE. 


191 


must  be  strong,  irrefragable  evidence,  but  he  did  not  think 
he  could  reject  it  as  incompetent(M)(106). 

Lord  Eldon,  observing  upon  these  dicta,  said,  that  Lord 
Thurlovv  seemed  to  saj  that  the  proof  must  satisfy  the 
Court  what  was  the  concurrent  intention  of  all  parties ; 
and  his  Lordship  added,  it  must  never  be  forgot  to  ivhat 
extent  the  defendant,  one  of  the  parties,  admits  or  denies 
the  agreement(\01).  In  the  case  before  Lord  Eldon(:r), 
a  specific  performance  of  an  agreement  was  sought,  with 
a  variation  attempted  to  be  introduced  by  parol,  on  the 
ground  of  mistake  and  surprise,  which  was  positively  de- 
nied by  the  defendant.  And  his  Lordship  said,  that  he 
would  not  say,  that  upon  the  evidence  without  the  answer, 
he  should  not  have  had  so  much  doubt  whether  he  ou^ht 
not  to  rectify  the  agreement,  as  to  take  more  time  to  con- 
sider whether  the  bill  should  be  dismissed  ;  but  as  the 
agreement  was  to  be  considered  with  reference  to  the 
answer  by  which  he  had  positively  denied  it,  his  Lordship 
dismissed  the  bill,  but  without  costs(108). 

(m)  Countess  of  Shelburne  r.' the  Earl  of  Inchiquin,  1  Bro.  C.  C. 
338  ;  and  see  Cock  v.  Richards,  10  Yes.  jun.  441. 

(x)    Marquis  of  Townshend  v.  Stangroom,  6  Yes.  jun.  328. 

(106)  See  Gillespie  v.  J\Ioon,  ut  supra.  Lyman  v.  United  Ins.' Co. 
2  Johns.  Ch.  Rep.  630.  Souverbye  v.  Arden,  1  Johns.  Ch.  Rep.  240, 
252.  Geinian's  Exrs.  r.  Beardsley,  2  Johns.  Ch.  Rep.  274.  Dupree 
V.  M' Donald,  4  Des.  210,  211. 

(107)  In  Gillespie  and  JMoon,  ut  supra,  it  was  held,  that  parol  evi- 
dence was  admissible  to  shew  a  mistake,  although  it  be  denied  in  the 
answer ;  and  such  evidence  is  to  be  received,  as  well,  where  the  plain- 
tifi'  seeks  relief  on  the  ground  of  the  mistake,  as  where  the  defendant 
sets  it  up  as  a  defence.  As  to  the  efficiency  of  an  answer  denying  an 
allegation  in  the  bill,  and  the  evidence  necessary  to  outweigh  the  answer, 
see  Zilstra  v.  Keilli,  2  Des.  140.  Sec  also,  Lyman  v.  United  Ins.  Co. 
ut  supra,  and  Gillespie  v.  J\Ioon,  2  Johns.  Ch.  Rep.  593.  Pringle  v. 
Samuel,  1  Litt.  43. 

(108)  Sec  Lyman  v.  United  Ins.  Co.     2  Johns.  Ch.   Rep.  630. 

In  Gillespie  v   Moon,  2  J.  Ch.  R.  585,  where  the  bill  was  brought 


192 


OF  PAROL  EVIDENCE. 


Lord    Eldou's    decision    precisely  accords  with    Lord 
Thurlovv's  opinion,  which  he  rightly  construed.     For  in 

to  rectify  a  mist<ake,  in  the  conveyance  to  the  defendant,  which,  by  an 
error  in  the  description  of  the  land,  conveyed  the  whole  lot,  or  250 
acres,  instead  of  200  acres  parcel  of  the  same.  The  mistake  was  de- 
nied in  the  answer ;  and  it  was  objected  that  parol  evidence  of  the  mis- 
take was  not  admissible,  in  order  to  explain  the  language  of  the  deed, 
and,  especially  in  opposition  to  the  answer  of  the  defendant.  The 
Chancellor,  however,  admitted  the  evidence.  "  The  cases,  he  remark- 
ed, concur  in  the  strictness  and  difficulty  of  the  proof,  but  still  they  all 
admit  it  to  be  competent,  and  the  only  question  is,  does  it  satisfy  the 
minds  of  the  Court?  Lord  Hardwicke  said,  it  must  be  proper  proof, 
and  the  strongest  proof  possible  ;  and  Lord  Thurlow,  that  it  must  be 
strong,  irrefragable  proof;  and,  he  said,  the  difficulty  of  the  proof  was 
so  great,  that  there  was  no  instance  of  its  prevailing  against  a  party  in- 
sisting that  there  is  no  mistake.  We  are  now  considering  the  question 
of  the  competency,  and  not  of  the  amount  of  the  parol  proof,  and  it  ap- 
pears to  be  the  steady  language  of  the  English  Chancery,  for  the  last 
70  years,  and  of  all  the  compilers  of  the  doctrines  of  that  court,  that 
a  party  may  be  admitted  to  show,  a  mistake,  as  well  as  fraud,  in  the 
execution  of  a  deed  or  other  writing. 

Application  of  the  principle.  On  bills  for  a  specific  performance  of 
an  agreement  in  writing,  the  defendant  has  frequently  been  admitted  to 
show,  by  parol  proof,  a  mistake  in  such  agreement,  and,  by  that  means, 
to  destroy  the  equity  of  the  bill.  The  relief  on  such  bills  is  said  to 
rest  in  discretion,  and  if  the  defendant  can  show  surprise  or  mistake,  it 
makes  the  special  performance  of  such  an  agreement  unjust.  There  is 
another  class  of  cases  in  which  the  object  of  the  parol  proof  is  to  cor- 
rect mistakes  in  bonds,  deeds  of  settlements,  mortgages,  and,  generally, 
in  all  contracts  and  agreements,  and  where  the  proof  is  introduced  to 
aid  the  plaintiff  in  his  bill,  as  well  as  to  aid  the  defendant  in  his  defence. 

Whether  such  proof  be  admissible  on  the  part  of  a  plaintiff  who 
seeks  specific  performance  of  an  agreement  in  writing,  and  at  the  same 
time  seeks  to  vary  it  by  parol  proof,  has  been  made  a  question.  Lord 
Hardwicke  in  Jones  v.  Statham,  3  Atk.  388,  seemed  to  think  it  might 
be  done  ;  but  such  proof  was  rejected  by  the  master  of  the  Rolls  in 
Wollam  r.  Hearn,  7  Ves.  211.  and  again  in  Higginson  v.  Clowes,  15  lb. 
516  ;  and  Lord  Redesdale  said,  in  Clinan  v.  Cooke,  1  Scho.  &  Lef.  39, 
that  he  could  find  no  decision  in  which  a  plaintiff  had  been  permitted  to 
show  an  omission  in  a  written  agreement,  by  mistake-or  fraud,  he  must 
be  understood  to  refer  to  cases  of  bills  for  a  specific  performance  of  an 
agreement,  which  was  the  case  then  before  him.     There   are  numerous 


OF  PAROL  EVIDENCE.  |  Q^ 

Lord  Irnhani  i".  Child(?/),  it  was  observed  by  Lord  Thur- 
low,  that  if  a  mistake   be  admitted,  the  Court  would  not 

(y)  1  Bro.  C.  G.  92  ;  and  see  Hare  v.  Shearwood,  3  Bro.  C.  C.  168 ; 
1  Ves.  jun.  241  ;  and  Haynes  v.  Hare,  1  Hen.  Blackst.  659. 

instances  in  which  the  plaintiff  has  cWiwed  and  obtained  relief,  by  show- 
ing a  mistake  in  the  agreement ;  and  there  would  be  a  most  deplorable 
failure  of  justice,  if  the  mistakes  could  only  be  shown  and  corrected  when 
set  up  by  a  defendant  to  rebut  an  equity.  The  cases  of  Randal  v.  Ran- 
dal, 2  P.Wms.  464  ;  Rogers  v.  Earl,  Dickens,  294,  and  of  Barstow  v. 
Kilvington,  5  Ves.  593,  were  bills  filed  to  rectify  mistakes  in  settlements  ; 
and  in  all  of  them  proof  aliunde  was  admitted,  though  the  admission 
was  resisted  ;  and,  in  two  of  the  cases  by  the  defendant,  who  claimed 
as  heir  against  the  mistake. 

It  has  been  said,  that  there  was  no  instance  of  a  mistake,  corrected 
in  favor  of  a  plaintiff,  against  the  answer  of  the  defendant,  denying  the 
fact  of  mistake.  But  I  do  not  understand  any  of  the  dicta  on  this 
point  to  mean,  that  the  answer,  denying  the  mistake,  shuts  out  the  parol 
proof,  and  renders  relief  unattainable,  however  strong  that  proof  may  be. 
The  observations  of  Lord  Eldon  in  The  Marquis  of  Townsend  v. 
Stangroom,  certainly  imply  no  more,  than  that  the  answer  is  entitled  to 
weight,  in  opposition  to  the  parol  proof;  but  it  certainly  can  be  over- 
come by  such  proof.  In  that  very  case,  the  answer  denied  the  mistake, 
yet  parol  proof  was  held  admissible.  Lord  Thurlow  said,  that  there 
was  so  much  difficulty  in  establishing  the  mistake,  to  the  entire  satis- 
faction of  the  court,  that  it  liad  never  prevailed  against  the  answer  deny- 
ing the  mistake.  But,  as  I  read  the  case  of  Pitcairn  v.  Ogbourne,  2 
Ves.  375,  before  Sir  John  Strange,  the  bill  was  to  be  relieved  against  an 
annuity  bond,  and  to  reduce  the  sum  according  to  the  original  under- 
standing and  agreement  of  the  parlies.  Parol  proof  was  admitted  ; 
and  relief  was  not  granted  upon  other  and  distinct  grounds,  no  way  con- 
nected with  the  question,  as  to  the  competency  and  effect  of  the  proof. 

It  is  the  settled  law  of  this  court,  as  was  shown  in  the  case  of  Boyd 
V.  M'Lean,  1  J.  Ch.  R.  582,  that  a  resulting  tru^^t  may  be  established 
by  parol  proof,  in  opposition  to  the  deed,  and  in  opposition  to  the  an- 
swer denying  the  trust.  There  is  no  reason  why  the  answer  should 
have  greater  effect  in  this  than  in  that  case,  and  there  would  be  manifest 
inconsistency  in  the  doctrines  of  the  court,  if  such  a  distinction  existed. 
The  case  of  Marks  r.  Pell,  1  ib.  598,  9,  admitted,  that  parol  proof  of 
mistakes  was  competent ;  and  it  was  held  not  to  be  ?nfficient,  in  that 
case,  because  it  consistt-d  of  naked  confessions  of  a  party,  made  seven- 
teen years  after  peaceable  posEession,  under  a  deed.  'J  he  confessions 
VOL.   I.  25 


194 


OF  PAROL  EVIDENCE. 


overturn  the  rule  of  equity  by  varying  the  deed  ;  but  it 
would  be  an  equity  dehors  the  deed.     Then  it  should  be 

also,  in  that  case,  were  of  a  negative  kind,  and  deduced  from  tacit  ac- 
quiescence ;  the  party  who  made  them  was  dead,  and  the  possession 
had  been,  for  30  years,  under  the  deed,  and  there  were  no  corroborating 
circumstances  in  aid  of  the  confessions. 

Washburn  v.  Merrills,  1  Day's  Cas.  in  Error,  139,  is  a  strong  case  on 
the  subject.  A  mortgagor  by  mistake,  made  an  absolute  deed  ;  and  the 
mortgagee  got  into  possession,  sold  t©  a  purchaser,  by  a  deed  with  co- 
venants of  warranty.  A  purchaser  under  the  mortgagor  filed  his  bill, 
against  the  purchaser,  under  the  mortgagee  to  redeem.  The  answer 
set  up  the  statute  of  frauds  as  a  defence  ;  and  on  the  trial,  parol  proof 
of  the  mistake  was  offered  by  the  plaintiff  and  admitted,  and  the  deed 
established,  and  a  right  of  redemption  decreed.  This  decree  was  unan- 
imously confirmed  in  the  Court  of  Errors. 

In  the  case  of  Comstock  v.  Hadlyme,  8  Conn.  854,  where  the  ques- 
tion arose  whether  the  declarations  of  the  devisor,  made  about  the  time 
of  executing  her  will,  tending  to  shew  that  she  was  unduly  influenced, 
were  admissible  in  evidence  on  a  trial  of  the  probate  of  the  will :  held, 
that  they  were  only  admissible  for  the  purpose  of  showing  the  state  of 
mind  of  the  devisor.     Williams,  J.     "  If  it  was  claimed,  that  those  de- 
clarations were  part  of  the  res  gesia,  the  time  when  made  should  have 
been  precisely  stated  ;  about  the  time  is  quite  too  indefinite  :  and  if  her 
declarations  were  not  a  part  of  the  res  gesta,  I  know  not  upon  what  prin- 
ciple they  can  be  introduced  as  evidence  of  facts.     Is  a  will  or  deed, 
valid  upon  the  face  of  it,  to  be  destroyed,  or  in  any  way  affected,  by 
the  declarations  of  the  devisor  or  grantor  1     Some    strong  authority  is 
necessary  to  support  such  a  proposition.     In  the  case  of  a  deed,  it 
would  not  be  claimed.     A  will,  to  be  sure,  is  ambulatory  ;  and  nothing 
vests,  during  the  life  of  the  devisor.     Still,  hoM'ever,  it  can  be  altered 
or  revoked  only  in  a  legal  manner.     In  Nelson  v.  Oldfield,  2  Vern.  76. 
evidence  of  what  the  testator  said,  to  prove  duress,  was  admitted  ;  but 
no  objection  appears  to  have  been  made,  and  the  Court  said,  the  legatee 
had  her  probate,  and  might  make  what  use  she  could  of  it,  but  a  Court 
of  Chancery  would  not  aid  her.     In  Jackson  v.  Kniffen,  2  Johns.  R. 
31.  the  Ch.  says :     "  To  permit  wills  to  be  defeated  by  the  parol  decla- 
rations of  the  testator,  appears  to  me  repugnant  to  the  very  genius  and 
spirit  of  the  statute,  and  not  to  be  allowed."     And  in  Smith  v.  Fenner, 
1  Gall.  172.  it  was  held,  that  the  declaration<3  before  and  at  the  execu- 
tion of  the  will,  were  admissible,  but  none   made  after,  unless  so  near 
the  time  of  the  execution  as  to  be  a  part  of  the  res  gesta,  or  necessarily 
connected  with  it.     And  in  Stevens  v.  Vancleve,  4  Wash.  C.   C.  R. 


OF  PAROL  EVIDENCE. 


195 


proved  as  much  to  the  satisfaction  of  the  Court,  as  if  it 
were  (*)admitted  :     "  The  difficulty  of  this  is  so  great, 

265.  Washington,  J.  says,  "  The  declarations  of  a  party  to  a  deed  or 
will,  whether  previous  or  subsequent  to  its  execution,  are  nothing  more 
than  hearsay  evidence  ;  and  nothing  could  be  more  dangerous  than  the 
admission  of  it,  to  control  the  construction  of  the  instrument,  or  to  sup- 
port or  destroy  its  validity." 

In  Comstock  v.  Haldyme,  the  question  was  presented  whether  a  mis- 
take in  drafting  a  will,  will  render  it  void.  The  mistake  consisted  in 
omitting  to  insert  in  the  will  according  to  the  direction  of  the  testatrix 
a  legacy  to  her  grandchildren.  The  court  held  that  the  evidence  was 
not  admissible.  Williams,  J.  observed  "  The  statute,  when  it  required 
all  wills  to  be  in  writing,  signed  by  the  testator  and  attested  by  witnesses, 
certainly  intended,  that  the  evidence,  and  the  whole  evidence,  of  the 
disposition  of  property  by  will,  should  be  the  will  itself;  ,that  the  evi- 
dence of  the  intent  of  the  devisor  should  be  derived  from  the  writing, 
signed  by  him  and  solemnly  attested ;  otherwise,  innumerable  would  be 
the  cases,  where  evidence  of  mistake  would  be  claimed  and  proved. 

It  has  always  been  decided,  that  parol  testimony  could  not  be  admit- 
ted to  prove,  that  the  devisor  intended  to  give  a  different  estate  from 
what  the  will  expressed.  Chappel  v.  Avery,  6  Conn.  34  ;  Farrer  v. 
Ayres,  5  Pick.  407.  It  is  a  sacred  rule  of  property  not  to  be  departed 
from.  Goodtitle  v.  Edmonds,  7  Term  635,  640.  Richards  v.  Dutch, 
8  Mass.  506,  515.  And  if  it  is  settled,  that  you  cannot,  by  parol  proof, 
alter  the  legal  import  of  the  terms  used  by  the  scrivener,  such  a  will 
must  either  be  void,  or  convey  a  different  estate  fr^m  the  one  intended. 
It  is  not  void.     Doug.  763  ;   1  B.  &  B.  261.  n.     Cowp,  660. 

In  contracts,  mistakes  have,  indeed,  been  rectified,  in  a  court  of 
Chancery,  but  no  case  is  recollected,  where  they  have  been  holden  void, 
on  account  of  a  mistake.  In  Phillips  r.  Chamberlaine,  4  Yes.  jun.  61, 
57.  where  an  intention  was  expressed  to  give  a  legacy  to  the  Humane 
Society,  but  no  sum  was  inserted,  the  will  was  held  not  to  be  void. 
And  it  would  seem,  that  in  this  case,  if  any  remedy  existed,  it  would  be 
one  that  would  not  destroy  the  whole  will,  but  one  which  would  correct 
the  mistake,  and  make  it  what  it  ought  to  be.  That  has  been  attempted, 
in  a  recent  case ;  and  it  was  decided,  that  parol  testimony  could  not  be 
admitted  to  prove  the  mistake.  It  would  be  to  make  a  will  by  witnesses, 
and  not  by  writing ;  to  make  a  will  any  thing.  Avery  v.  Chappel,  6 
Conn.  270,  275.  And  if  such  evidence  cannot  be  admitted,  in  Chan- 
cery, to  prove  a  mistake  in  a  will,  where  is  the  principle,  or  where  the 
authority,  that  such  evidence  can  be  admitted  to  render  the  will  void  ] 
Courts  of  law  and  chancery  proceed  upon  the  same  principle  as  to  ad- 

(*160) 


196 


OF  PAROL  EVIDENCE. 


that  there  is  no  instance  of  its  prevailing  against  a 'party 


insisting  there  was  no  mistake.''^ 


mitting  parol  testimony  ;  and  it  is  certainly  a  novel  idea,  that  courts  of 
chancery  are  less  liberal,  on  that  subject,  than  courts  of  law.  I  think, 
then,  it  follows,  that  if  courts  of  chancery  cannot  admit  such  evidence 
to  prove  a  mistake,  which  they  might  correct,  courts  of  law  cannot  ad- 
mit it  to  prove  a  mistake  to  set  aside  the  will.  The  danger  arising 
from  the  admission  of  the  proof  is  the  same  in  both  cases  ;  and  if  the 
rules  of  law  would  allow  that  proof,  it  would  be  congenial  to  principle, 
and  more  likely  to  effectuate  the  intent  of  the-  devisor,  to  correct  (he 
mistake,  than  to  make  void  the  whole  instrument.  And  if  the  former 
cannot  be  done,  much  less  can  the  latter.  And  the  fact  that  no  case  is 
found  since  the  statute  29  Car.  11.  is  strong,  if  not  conclusive  evidence, 
that  such  has  been  the  construction. 

In  Reading  v.  Weston,  8  Conn.  117,  it  was  decided  that  parol  evi- 
dence was  not  admissible  to  prove  an  absolute  deed  to  be  a  deed  on 
condition.  Flint  v.  Sheldon,  13  Mass.  443.  decided,  that  an  absolute 
deed  of  land  cannot  be  varied,  by  parol  evidence,  shewing  that  it  was 
for  the  loan  and  repayment  of  a  sum  of  money.  But  it  has  often  been 
decided  in  Chancery,  that  parol  evidence  is  admissible  to  shew,  that  an 
absolute  deed  was  intended  as  a  mortgage,  and  that  a  defeasance  was 
omitted  through  fraud  or  mistake.  Hence,  a  deed  absolute  on  the  face 
of  it,  and  though  registered  as  a  deed,  will  in  Chancery  be  held  valid 
and  effectual  as  a  mortgage,  as  between  the  parties,  if  it  was  intended 
by  them  to  be  merely  a  security  for  a  debt,  although  the  defeasance 
was  by  an  agreement  resting  in  parol.  Washburn  v.  Merrills,  1  Day 
139  ;  Strong  and  al  v.  Stewart,  4  J.  Ch.  R.  417  ;  Marks  &  al  v.  Pell, 
1  ib.  594  ;  Clark  v.  Henry,  2  Cowen,  323  ;  Slee  v.  Manhattan  Co.  60, 
1  Paige  48.  Chancery  interposes,  because  a  court  of  law  does  not  af- 
ford a  remedy.  The  rule  in  the  courts  of  law,  is,  that  the  written  in- 
strument, contains  the  true  agreement  of  the  parties,  and  that  the  writing 
furnishes  better  evidence  of  their  intention  than  any  that  can  be  suppli- 
ed by  parol.  But  in  equity,  relief  may  be  had  against  any  deed  or  con- 
tract founded  in  mistake  or  fraud.     See  cases  supra. 

Though  it  is  the  province  of  a  Court  of  Chancery  to  relieve  against 
fraud,  accident  and  mistake,  it  must  be  a  mistake  in  fact  and  not  a  mis- 
take in  law.  Thus,  in  Wheaton  v.  Wheaton,  9  Conn.  96.  which  was 
a  bill  in  chancery,  which  alleged  that  the  writings  were  drawn  without 
the  scrivener's  being  informed  what  the  agreement  between  the  parties 
was.  Nor  did  the  plaintiff"  pretend,  "  that  the  note  was  executed  by 
him  under  mistake  in  any  one  matter  of  fact.  It  is  simply,  that 
the  plaintiff  ignorantly  supposed  a  note,  payable,  by  Ihe   terras  of  it,  in 


OF  PAROL  EVIDENCE.  |97 

Where  the  Court  cannot  satisfy  itself  of  the  fact,  an 
issue  may  be  directed  to  try  the  question.  Thus,  in"  the 
case  of  the  South  Sea  Company  v.  D'01iff(2),  D'Oliff 
agreed  not  to  carry  goods  under  certain  circumstances  ; 
and  if  information  was  given  in  two  months  after  return 
home  that  he  had  done  so,  he  was  to  pay  certain  stated 
damages.  The  instrument  was  not  drawn  up  until  on 
board  the  ship,  and  in  a  great  hurry,  and  executed  there 
by  D'OlifT;  who  when  he  got  out  to  sea,  and  read  it  over, 
found  it  was  six  months  instead  of  two  ;  and  brought  a 
bill  to  be  relieved  against  that  variation  in  the  instrument, 
the  company  having  brought  an  action  on  it.  Lord  King 
sent  it  to  an  issue ;  it  was  tried  on  a  question,  whether  it 
was  the  original  agreement  it  should  be  two  instead  of 
six  months.  A  verdict  was  given  in  favor  of  the  plaintiff, 
that  the  agreement  was  designed  to  be  in  two,  and  in  con- 
sequence of  that,  Lord  Talbot  made  a  decree  to  relieve 
the  plaintiff  against  any  difficulty  by  the  variation. 

(2)  2  Yes.  377;  5  Ves.  jun.  601,  cited;  and  see  Pember  v.  Math- 
ers, 1  Bio.  C.  C.  52.  * 

three  years,  to  be,  in  law,  a  note  payable  at  (he  death  of  the  obligee  ; 
and  (hen  not  actually  to  be  paid,  but  to  be  delivered  up  :  And  to 
show  this  mistake,  said  Bissel,  J.  we  are  asked  to  let  in  parol  evi- 
dence. The  court  held  clearly,  that  the  evidence  was  not  admis- 
sible. After  citing  Hunt  v.  Rousmanier,  8  Wheat.  174,  and  1 
Pet.  U.  S.  R.  1,  the  learned  Justice  remarked,  "  It  would  not,  perhaps, 
be  going  too  far  to  say,  that  the  doctrines  laid  down  by  Chief  J.  Mar- 
shall, in  this  case,  were  greatly  shaken,  by  the  subsequent  opinion  of 
Judge  Washington  ;  and  that  taking  the  whole  case  together,  it  will 
hardly  warrant  a  departure  from  principles  long  considered  as  settled." 
The  parol  declarations  of  the  testator  as  to  the  estate  he  intended  to 
give  by  the  will  are  not  admissible  ;  for  they  cannot  control  what  the 
law  considers  settled  upon  the  face  of  the  will.  P\irrar  v.  Ayres,  5 
Pick.  404.  However,  when  there  is  an  ambiguity  in  the  words  used, 
which  will  justify  an  ■explanation  by  extrinsic  matter,  the  Court  will  per- 
mit a  resort  to  memoranda  written  and  signed  by  the  testator,  to  show 
what  was  intended  (o  be  included  bj  the  words  in  the  will.  Wads  worth 
r.  Ruggle?,  6  Pick.  63. 


198  ^^  PAROL  EVIDENCE. 

The  hesitation  with  which  parol  evidence  is  received 
in  equity  to  correct  even  mistakes  in  agreements  and 
deeds,  is  strongly  exemplified  by  a  case  before  Sir  William 
Fortescue(«)(109).  Previously  to  marriage  an  estate  was 
agreed  to  be  settled  on  the  intended  husband  for  life,  re- 
mainder to  the  wife  for  life,  remainder  to  the  sons  success- 
ively in  tail  male,  remainder  to  all  the  daughters.  Instruc- 
tions were  given  to  an  attorney  to  draw  the  settlement,  who 
drew  it  as  far  as  the  limitations  to  the  sons,  where  he 
(*)stopped,  and  said,  then  go  on  as  in  Pippin  v.  Ekins ; 
which  was  a  precedent  he  delivered  to  his  clerk,  to  go  on 
from  that  limitation,  and  was  a  right  settlement  to  the  issue 
male  and  daughters  by  that  wife ;  but  the  clerk  drew  the 
settlement  to  all  the  daughters  of  the  husband,  without 
restraining  it  to  that  marriage  :  it  was  executed  with  this 
mistake  :  the  question  arose  between  an  only  daughter  of 
that  marriage  and  children  of  the  husband's  by  the  second 
wife.  The  draft  of  the  attorney  was  proved,  and  the 
settlement  in  Pippin  v.  Ekins ;  but  the  Court  would  not 
admit  parol  evidence  of  the  attorney  tQ  be  read,  and  held 
that  the  other  evidence  would  not  do  ;  that  nothing  appear- 
ing in  writing  under  the  hands  of  the  parties,  the  settle- 
ment could  not  be  altered.  And  Sir  Thomas  Clark  is 
reported  to  have  said (6),  that  as  to  the  head  of  the  mis- 
take, he  did  not  give  a  positive  opinion,  but  he  did  not 
think  the  Court  had  relied  upon  parol  evidence  singly. 

But  whatever  difficulty  there  may  be  of  admitting  parol 
evidence  singly,  yet  it  is  always  admitted  where  it  is 
corroborated  by  other  evidence. 

This  doctrine  was  carried  a  great  way  in  the  case  of 
Dr.   Coldcot  V.   Serjeant  Hide(c).     Dr.  Coldcot  having 

(a)  Harwood  v.  Wallis,  2  Ves.  195,  cited. 

(6)   1  Dick.  295. 

(c)  1  Cha.  Ca.  15  ;  2  Freem.  173  ;   1  Sid.  238,  cited  ;  14  Car.  II. 


(109)   See  Dtipree  v.  M' Donald,  4  Des.  211. 
(*161) 


OF  PAROL  EVIDENCE. 


199 


purchased  church-lands  in  fee,  under  the  title  of  Crom- 
well, sold  them  to  the  defendant's  testator,  and  entered 
into  general  covenants  for  the  title.  Upon  the  Restoration 
the  estate  was  avoided,  and  upon  an  action  on  the  cove- 
nants, damages  to  the  value  of  the  purchase-money  were 
recovered.  A  bill  was  then  filed  to  be  relieved  against 
the  recovery  at  law,  which  suggested  a  surprise  upon  the 
plaintiff,  in  getting  him  to  enter  into  general  covenants, 
and  that  it  was  declared  by  the  parties,  when  the  deed 
was  executed,  that  it  was  intended  Dr.  Coldcot  should 
not  undertake  any  further  than  against  himself;  and  there 
(*)being  some  proof  of  this  declaration^  it  was  decreed  by 
the  Lord  Chancellor  and  Master  of  the  Rolls,  that  the 
defendant  should  acknowledge  satisfaction  on  the  judg- 
ment, and  pay  costs.  And  the  reporter  says,  a  like  case 
to  this  between  Farrer  v.  Farrer  was  heard  and  decreed 
after  the  same  manner,  about  six  months  ago. 

A  case,  nearly  similar,  occurred  about  eleven  years 
afterwards(f/)  ;  but  it  appeared  that  all  the  covenants 
except  the  one  upon  which  judgment  had  been  obtained 
at  law,  were  restrained  to  the  acts  of  the  vendor,  and  that 
the  vendor  sold  only  such  estate  as  he  had. 

This  last  case  was  quoted  in  a  case  in  the  Common  Pleas 
before  Lord  Eldon(e),  who  thought  the  decision  must 
have  been  made  on  the  ground  of  the  intent  of  the  parties 
appearing  on  the  instrument,  since  that  intent,  and  the 
consequent  legal  effect  of  the  instmment,  could  only  be 
collected  from  the  instrument  itself,  and  not  from  any 
thing  dehors.  In  a  still  later  case  in  the  same  Court(/), 
Lord  Alvanley  thought,  under  the  circumstances  of  the 
case,  that  the  application  was  made  to  the  Court  of  Chan- 
cery to  correct  the  mistake,  in  the  same  manner  as  applica- 

(d)  Fielder  r.  Studley,  Finch,  90. 

(e)  Browning  v.  Wright,  2  Bos.  &  Pull.  2fi. 
(/)  Hesse  v.  Stevenson,  3  Bos.  &  Pull.  675. 

(*162) 


200 


OF  PAROL  EVIDENCE. 


tions  are  made  to  that  Court  to  correct  marriage  articles 
where  clauses  are  inserted  contrary  to  the  intent  of  the 
parties.  It  seems  clear,  however,  that  the  relief  in  this  case 
was  founded  on  parol  evidence  that  the  vendor  sold  only 
such  estate  as  he  had,  corroborated  as  it  was  by  the  form  of 
the  deed  and  the  subject  of  the  contract.  Such  evidence 
was  received  in  the  prior  case  of  Dr.  Coldcot  and  Serjeant 
Hide,  and  is  still  clearly  admissible. 

Thus  in  Young  v.  Yoimg(g),  the  plaintiff  married 
Lucy,  a  defendant,  and  an  infant ;  the  husband  stated,  or 
(*)drew  by  way  of  instructions  to  his  attorney,  what  the 
wife's  fortune  then  was,  and  agreed  to  add  as  much  to 
be  settled  in  strict  settlement,  and  likewise  stated  that  the 
intended  wife  had  a  prospect  of  an  additional  fortune  ;  to 
which  he  agreed,  provided  it  did  not  exceed  1,000/.,  to 
add  a  like  sum,  to  be  likewise  settled  strictly,  and  he  to 
have  the  excess.  The  settlement  was  prepared  according 
to  the  instructions  ;  but  the  solicitor  having,  in  the  margin 
of  the  draft,  added  double  the  sum,  the  settlement  was 
prepared  and  executed  according  to  that  mistake.  Parol 
evidence  was  admitted  to  prove  the  mistake  ;  that  is,  the 
settlement  was  first  shown  to  differ  from  the  written  in- 
structions, and  parol  evidence  of  the  counsel  and  attorney 
was  then  received,  to  prove  the  mistake. 

This  equity  was  administered  in  the  case  of  Thomas  v. 
Davis,  before  cited(^),  where  it  clearly  appeared,  that  the 
estate  in  question  was  not  intended  to  be  comprehended 
in  the  general  words.  This  appeared  from  many  circum- 
stances, but  particularly  from  the  description  of  the  estate 
given  by  the  husband  to  the  attorney  by  way  of  instruc- 
tions, which  described  the  lands  particularly,  and  did  not 
include  Rigman  Hill ;  and  the  attorney  proved  that  he 
did  not  know  of  this  estate,  and  that  he  introduced  gener- 

(g)   1  Dick.  295,  cited.     See  1  Dick.  303,  304. 

(/i)    Supra,  p.  166;   1  Dick.  301  ;  Reg.  Lib.  B.  1767,  fol.  33,  34. 

(*163) 


OF  PAROL  EVIDENCE. 


201 


al  words,  merely  to  guard  against  any  wrong  or  imperfect 
description  of  the  lands  actually  intended  to  pass.  It  was 
objected,  that  the  admission  of  the  attorney's  evidence 
was  in  direct  contradiction  to  the  statute  of  frauds ;  but 
Sir  Thomas  Clark  was  clear  it  might  be  read,  and  accord- 
ingly admitted  it(I). 

(*)So  in  Rogers  v.  Earl(/),  instructions  were  given, 
previously  to  marriage,  for  a  settlement  of  the  wife's  es- 
tate on  the  husband  during  his  life,  if  he  and  his  wife 
should  so  long  live,  remainder  to  the  wife  for  life,  remain- 
der to  the  issue  of  the  marriage  in  strict  settlement,  re- 
mainder to  such  uses  as  the  wife  should  appoint ;  and  a 
draft  of  a  settlement  was  drawn  accordingly.  And  after 
the  limitation  to  the  husband,  it  stood  thus  :  And  immedi- 
ately after  the  decease  of  the  husband,  then  to  the  wife^ 
&c.  ;  and  proper  limitations  were  inserted  to  trustees  to 
preserve  contingent  remainders.  When  the  wife  saw  the 
draft,  thinking  she  was  past  child-bearing,  she  objected  to 
the  limitations  to  the  issue,  and  they  were  directed  to  be 
struck  out.  The  attorney,  by  mistake,  not  only  struck 
out  those  limitations,  but  also  the  limitation  to  the  wife 
for  life,  and  the  subsequent  limitation  to  trustees  to  pre- 

(i)  1  Dick.  294.  Note,  the  facts  are  not  stated  in  the  report ;  they 
are  extracted  from  the  Registrar's  book  ;  see  Reg.  Lib.  B.  1756,  fol. 
20o  ;  see  Pritchard  v.  Quinchant,  Ainbl.  147  ;  5  Yes.  jun.  596,  n.  (a)  ; 
and  Barstovv  v.  Kilvington,  5  Yes.  jun.  593  ;  and  see  Nelson r.  Nelson, 
Nels.  Cha.  Rep.  7 ;   Shaw  v.  Jakeman,  4  East,  201. 

(I)  The  judgment  is  very  inaccurately  stated  in  the  report.  After 
addressing  himself  to  the  general  words,  the  Master  of  the  Rolls  is  stat- 
ed to  have  said,  Do  these  words  coiDprise  Redmond  [Rigman]  Hill? 
I  do  not  think  they  do  include  Redmond  Hill  ;  but  other  words  do.  If 
Redmond  Hill  was  not  intended,  why  was  the  wife  to  join  ;  and  why 
did  she  join  ? — This  is  absolute  nonsense.  The  wife  joined  because 
she  was  interested  in  the  settled  estates  ;  and  the  opinion  of  the  Court 
was,  that  the  general  words  did  include  Rigman  Hill.  The  editor's 
marginal  abstract  of  this  case  shows  how  difficult  it  is  to  understand 
the  report  of  it. 

VOL.  1.  26  (*164) 


202  ^^  PAROL  EVIDENCE. 

serve,  and  the  deed  was  executed  without  the  mistake 
being  discovered,  whereby,  as  the  bill  stated,  the  said 
power  for  appointing  the  reversion  of  the  premises  was 
made  to  take  place  on  the  decease  of  the  plaintiff  gene- 
rally, though  the  limitation  to  him  was  only  during  the 
joint  lives.  The  wife  exercised  her  power  by  deed  in 
favor  of  her  husband  during  his  life,  and  then  by  will 
gave  him  the  fee,  and  then  died  in  his  life-time.  Her 
heir-at-law  insisted  that  the  use  resulted  to  him  during 
the  husband's  life,  and  that  there  being  no  trustee  to  pre- 
serve (*)contingent  remainders,  the  devise  in  the  will  as  an 
execution  of  the  power,  not  taking  effect  till  the  determi- 
nation of  the  pcirticular  estate,  was  void,  and  brought  an 
ejectment  against  the  husband,  and  obtained  a  verdict(I). 
The  husband  then  filed  a  bill  for  an  injunction,  and  to 
rectify  the  mistake  in  the  settlement.  The  defendant,  by 
his  answer,  urged  that  the  draft  of  the  settlement  might 
have  been  altered  with  a  view  to  support  the  husband's 
claim,  and  insisted  that  parol  evidence  could  not  be  re- 
ceived ;  but  Sir  Thomas  Clark  decreed,  that  the  "power 
appeared  to  have  been  designed  so  far  to  extend  as  to 
enable  her  to  dispose  of  the  interests  in  the  estates  after 
the  determination  of  the  coverture,  and  during  the  life  of 
her  husband,  as  well  as  to  dispose  of  the  inheritance  of 
the  estates  after  her  husband's  decease,  and  ordered  the 
settlement  to  be  rectified  accordingly  ;  but  without  costs 
on  either  side. 

In  the  last  case  upon  the  subject(/c),  a  conveyance  of 
a  portion  of  church-tithes  upon  a  purchase  was  made, 
contrary  to  what  was  considered  to  be  the  true  construe- 

(i)  Rob  V.  Butterwick,  2  Price,  190  ;  and  see  Beaumont  v.  Bram- 
ley,  1  Turn.  41. 

(I)  The  first  point  at  least  was  clear  at  law,  but  the  defendant  set 
up  an  old  term  as  a  bar  to  the  plaintift^'s  right  to  recover.  The  defence, 
however,  did  not  succeed.    See  Farmer  dem.  Earl  v.  Rogers,  2  Wils.  26. 

(*165} 


I 


OF  PAROL  EVIDENCE. 


203 


tion  of  the  written  agreement,  subject  to  a  proportion  of 
the  rent  reserved  by  the  lease  of  the  tithes  ;  and  upon 
proof  that  this  was  done  by  the  mistake  of  the  purchaser's 
attorney,  and  that  the  rent  had  not  been  demanded  for 
several  years,  the  deed  was  after  the  lapse  of  several 
years  rectified  and  made  conformable  to  the  written 
a^reement(llO). 


If  a  settlement  be  made  contrary  to  the  intention  of  the 
(*)parties,  merely  to  prevent  a  forfeiture(I),  parol  evidence 

(I)  In  this  case  the  settlement  was  to  prevent  the  estate  from  being 
sequestered  on  account  of  the  husband  having  been  in  arms  for  Charles 
the  first.     The  decree  was  made  in  the  reign  of  James  his  son.     So 

(110)  See  Table  v.  Archer,  3  Hen.  &  Munf.  399;  as  to  marriage 
articles ;  and  where  the  English  decisions  are  reviewed. 

Under  circumstances  which  denote  fraud  in  omitting  to  reduce  a 
part  of  an  agreement  into  writing,  the  whole  is  open  to  parol  proof. 
And,  upon  the  basis  of  part  performance,  where  possession  has  been  tak- 
en or  the  acts  done  amount  to  part  performance,  the  court  may  receive 
parol  proof  of  the  whole  agreement,  independent  of  or  in  connection 
with  what  may  be  in  writing,  in  order  to  make  out  the  contract.  This 
principle  was  recognised  in  the  late  case  of  Phyfe  r.  Wardell,  2  Ed- 
wards' C.  R.  47,  where  Phyfe  held  under  a  church  lease  ;  and  Warded 
&  al.  contracted  for  the  purchase  thereof  subject  to  a  lease  for  a  year 
of  a  part  of  the  premises  ;  but  the  writing  omitted  to  specify  all  the  par- 
ticulars of  the  contract ;  but  the  defendants  said  it  was  well  understood. 
After  obtaining  a  renewal  of  the  church  lease,  the  defendants  refused  to 
execute  the  contract.  The  court  overruled  the  demurrer  put  in  by  the 
defendants.  "  An  objection  is  taken  because  part  of  the  agreement  is 
not  in  writing.  The  bill  sets  forth  the  reason  of  the  omission :  it  was 
induced  by  the  representations  of  the  defendants,  and  the  complainant 
confided  in  them.  If  they  were  now  permitted  to  take  advantage  of 
the  omissiot^and  hold  the  complainant  strictly  to  the  written  memoran- 
dum as  the  only  evidence  of  the  agreement,  this^Court  would  be  sanc- 
tioning the  commission  of  a  fraud.  For  the  purpose  of  preventing  such 
a  consequence,  this  court,  under  the  circumstances,  is  at  liberty  to  dis- 
regard the  writing  and  treat  the  transaction  as  a  verbal  contract.  This 
principle  appears  to  have  been  acknowledged  by  Ch.  J.  Thompson,  be- 
fore the  Court  of  Errors,  in  Parkhurst  v.  Van  Cortland,  14  Johns.  R.  33. 

(*166) 


204 


OF  PAROL  EVIDENCE. 


is  admissible  of  the  real  intent  of  the  parties(/),  and  the 
settlement  will  be  rectified  in  conformity  with  it. 

Where  parties  omit  any  provision  in  a  deed,  on  the 
impression  of  its  being  illegal,  and  trust  to  each  other's 
honor,  they  must  rely  upon  that,  and  cannot  require  the 
defect  to  be  supplied  by  parol  evidence. 

Thus  in  Lord  Irnham  v.  Child(m),  it  appeared  that 
Lord  Irnham  treated  with  Child  for  sale  of  an  annuity. 
Upon  settling  the  terms,  it  was  agreed  that  the  annuity 
should  be  redeemable  ;  but  both  parties  supposing  that 
this  appearing  upon  the  face  of  the  transaction  would 
make  it  usurious,  it  was  agreed  that  the  grant  should  not 
have  in  it  a  clause  of  redemption  ;  and  it  was  accordingly 
drawn  and  executed  without  such  a  clause.  Lord  Thurlow 
refused  to  supply  the  omission.  A  similar  decision  was 
made  by  Mr.  Justice  Buller,  when  sitting  in  Chancery 
for  the  Lord  Chancellor(?z)  ;  and  two  similar  determi- 
nations were  made  by  Lord  Kenyon,  when  Master  of  the 
Rolls(o). 

(*)Upon  these  cases  Lord  Eldon  observes,  that  they 
went  upon  an  indisputably  clear  principle,  that  the  parties 
did  not  mean  to  insert  in  the  agreement  a  provision  for  re- 

(/)  Harvey  v.  Harvey,  2  Cha.  Ca.  180,  decided  the  same  way,  first 
by  Sir  Harbottle  Grimston,  then  by  Lord  Nottingham,  and  afterwards 
by  Lord  Chancellor  Jefferies  ;  and  see  Fitzgib.  213,  214  ;  see  Strat- 
ford V.  Powell,  1  Ball  &  Beatty,  1. 

(m)  1  Bro.  C.  C.  92. 

(n)  Hare  v.  Shearwood,  1  Ves.  jun.  241  ;  3  Bro.  C.  C.  168.  See 
and  consider  Haynes  v.  Hare,  1  Hen.  Blackst.  659(n). 

(o)  Lord  Portmore  v.  Morris,  2  Bro.  C.  C.  219  ;  1  Hen.  Blackst. 
663,  664  ;  Rosamond  v.  Lord  Melsington,  3  Ves.  jun.  40,  n. 

that  as  to  the  nature  of  the  forfeiture,  it  is  evident  that  the  relief  of 
equity  would  not  have  been  afforded,  for  the  purpose  of  upholding  the 
settlement,  except  under  the  Restoration  !  5| 

(II)  Perhaps  this  case  does  not  belong  to  this  line  of  cases,  but  should    .  i, 
be  classed  with  those  in  which  a  term  is  omitted  by  mistake  ;  of  which 
vide  supra. 

fM67^ 


OF  PAROL  EVIDENCE.  205 

demption,  because  they  were  all  of  one  mind  that  it  would 
be  usurious  ;  and  they  desired  the  Court  to  do  not  what 
they  intended,  for  the  insertion  of  that  provision  was 
directly  contrary  to  their  intention  ;  but  they  desired  to 
be  put  in  the  same  situation  as  if  they  had  been  better 
informed,  and  consequently  had  a  contrary  intention. 
The  answer  is,  they  admit  it  w^as  not  to  be  in  the  deed  ; 
and  why  was  the  Court  to  insert  it,  where  two  risks  had 
occurred  to  the  parties  ;  the  danger  of  usury,  and  the 
danger  of  trusting  to  the  honor  of  the  party  ? 

But  fraud  is  in  equity  an  exception  to  every  rule.  In 
the  case  of  Lord  Irnham  v.  Child,  Lord  Thurlow  distinctly 
said,  if  the  agreement  had  been  varied  by  fraud,  the  evi- 
dence would  be  admissible.  If  the  bill  stated  that  the 
clause  was  intended  to  be  inserted,  but  it  was  suppressed 
by  fraud,  he  could  not  refuse  to  hear  evidence  read  to  es- 
tablish the  rule  of  equity.  Lord  Kenyon  advanced  the 
same  doctrine  in  the  cases  before  him,  and  Mr.  Justice 
Buller  also  thought  that  parol  evidence  was,  in  such  cases, 
admissibleQ?J. 

The  only  difficulty  in  these  cases  is,  to  ascertain  what 
shall  be  deemed  fraud.  If  parties  merely  agree  to  a  term, 
and  then  execute  an  instrument  in  which  the  term  is 
omitted,  without  objecting  to  the  omission  of  it,  the  Court 
cannot  relieve  the  injured  party (^).  So  where  a  lessor 
drew  a  lease  for  one  year,  instead  of  twenty-one,  and  then 
read  it  for  twenty-one  years,  the  lessee  brought  his  bill  to 
be  relieved  ;  but  as  he  could  read,  it  was  deemed  his  o\\  n 
(*)folly  ;  and  as  the  case  was  within  the  statute,  his  bill 
was  dismissed  with  costs(r).     Again,  where  in  a  lease  the 

(p)  And  see  Taylor  v.  Radd,  5  Ves.  jun.  395,  cited  ;  Henkle  r.  R. 
E.  A.  Office,  1  Yes.  317  ;  and  sec  Pitcairne  r.  Ogbourne,  2  Ves.  375; 
Countess  of  Shelburne  v.  the  Earl  of  Inchiquin,  1  Bro.  C.  C.  338. 

iq)   See  Rich  v.  Jackson,  4  Bro.  C.  C.  514  ;  et  supru,  p.  143. 

(r)  Anon   Skin.  159. 

(*168) 


206  O^  PAROL  EVIDENCE. 

right  to  enter,  cut,  and  carry  away  the  trees,  was  reserv- 
ed to  the  lessor,  the  lessee  went  into  parol  evidence  to 
show  that  that  was  contrary  to  the  original  agreement, 
and  proved  a  conversation  previously  to  the  execution  of 
the  lease,  in  which  the  landlord  assured  the  lessee  he 
should  not  cut  the  timber,  and  only  reserved  it  in  order 
that  all  his  leases  might  be  uniform.  The  plaintiff's 
counsel,  however,  gave  up  this  part  of  the  bill  at  the  hear- 
ing(5),  and  Lord  Rosslyn  treated  it  as  clearly  wrong.  So 
I  am  told  that  in  a  very  recent  case  at  law(i),  where  a 
warrant  of  attorney  was  given  to  confess  judgment  on  the 
assurance  of  the  creditor  that  no  execution  should  issue 
for  three  years,  and  execution  was,  contrary  to  this  parol 
agreement,  issued  immediately,  the  Court  inclined,  that 
as  the  defendant  knew  the  contents,  and  had  sufficient 
time  to  read  the  warrant  of  attorney,  they  could  not  re- 
lieve ;  and  yet  a  court  of  law  considers  itself  to  have  a 
considerable  controlling  power  over  its  own  judgments 
entered  up  under  warrants  of  attorney,  where  the  party 
entering  them  up  has  been  guilty  of  a  fraud(w).  The 
case,  however,  went  off  on  another  ground(lll). 

In  the  Countess  of  Shelburne  v.  the  Earl  of  Inchi- 
quin(a:),-  Lord  Thurlow  said,  if  two  persons  entrust  a  third 
person  to  draw  up  minutes  of  their  intention,  and  such 

(s)  Jackson  v.  Cator,  6  Ves.  jun.  688. 
(0   Gennor  v.  Macmahon,  M.  T.  1806,  B.  R. 
(«)   See  1  H.  Blackst.  63,  664. 

(a^)  1  Bro.  C.  C.  350  ;  and  see  Crosby  v.  Middleton,  3  Cha.  Rep. 
99;  Langley  v.  Brown,  2  Atk.  195  ;  Baker  v.  Paine,  1  Ves.  6. 

(Ill)  As  to  the  validity  of  private  agreements  of  parties,  relating  to 
the  proceedings  in  a  cause.  See  Dunlop's  Les.  v.  Speer,  3  Binn.  169. 
Platihenhorn  v.  Cave,  2  Yeates,  370.  Parol  evidence  is  inadmissible 
to  shew,  that  a  levy  and  sale  under  a  Ji- Ja.  has  been  abandoned  by  the 
plaintiff,  in  contradiction  of  the'sheriff's  deed.  The  proper  remedy,  in 
such  case,  would  be  an  application  to  the  Court  to  set  aside  the  sale. 
Jackson  v.  Vanderhayden,  17  Johns.  Rep.  167. 


I 


OF  PAROL  EVIDENCE. 


2or 


person  does  not  draw  them  according  to  such  intention, 
that  case  might  be  relieved,  because  that  would  be  a  kind 
of  fraud. 

And  it  is  said,  that  in  the  case  of  Jones  v.  Sherifte(?/), 
(*) there  were  heads  of  an  intended  lease  taken  by  an  at- 
torney in  writing  ;  but  upon  proof  that  some  other  clauses 
were  agreed  on  between  the  parties  at  the  same  time,  the 
Court  decreed  that  those  clauses  should  be  put  into  the 
lease,  notwithstanding  the  counsel  on  the  other  side  stren- 
uously insisted  on  the  statute  of  frauds. 

And  if  either  party  object  to  a  conveyance,  on  the 
ground  of  a  term  of  the  agreement  being  omitted,  and 
the  other  party  promise  to  rectify  it,  whereupon  the  deed 
is  executed,  a  specific  performance  of  the  promise  will  be 
enforced. 

Thus  in  Pember  v.  Mathers,(2')  a  bill  was  filed  for  a 
specific  performance  of  a  parol  agreement  by  a  purchaser 
of  a  lease  under  written  conditions,  to  indemnify  the 
vendor  against  the  rent  and  covenants ;  and  it  was  ob- 
jected, on  the  part  of  the  defendant,  that  the  evidence  was 
inadmissible,  upon  the  ground,  that  where  the  parties 
have  entered  into  a  written  agreement,  no  parol  evidence 
can  be  admitted  to  increase  or  diminish  such  agreement. 
The  rule.  Lord  Thurlow  said,  was  right ;  but  where  the 
objection  was  originally  made,  and  promised  by  the  other 
party  to  be  rectified,  it  comes  amongst  the  string  of  cases 
where  it  is  considered  as  a  fraud.  Then  the  evidence  is 
admissible.  There  being  some  doubt  as  to  the  fact,  Lord 
Thurlow  ordered  it  to  go  to  law  upon  an  issue,  whether 
there  was  such  a  promise  on  the  day  of  the  execution  of 
the  agreement.  Upon  the  trial,  the  jury  found  there  was 
such  a  promise  ;  and  the  plaintiff  had  a  decree  for  a  specific 
performance(l  12). 

(y)   9   Mod.  88,  cited. 

{2)  1  Bro.  C.  C.  62 ;  see  14  Ves.  jun.  624. 

(112)  See  Christ  v.  Diffeback,  1  Serg.  &  Rawle,  464. 

(*169) 


2Q3  OF  PAROL  EVIDENCE. 

So  we  have  before  seen,  that  where  it  is  stipulated  that 
the  agreement  shall  be  reduced  into  writing,  and  either 
party  fraudulently  prevents  the  agreement  from  being 
(*)put  into  writing,  equity  will  perhaps  relieve  the  injured 
party(«). 

And  it  is  perfectly  clear  that  where  fraud  is  distinctly 
proved,  or  the  jury  infer  it  from  the  circumstances,  an 
agreement  is  invalid  at  law,  as  well  as  in  equity (6)  ;  but 
the  reducing  the  agreement  to  writing  is,  in  most  cases, 
an  argument  against  fraud. 

But  it  must  be  remarked,  that  a  deed  will  not  be  recti- 
fied in  equity  on  the  ground  of  mistake  or  fraud,  to  the 
prejudice  of  a  bona  jide  purchaser,  without  notice. 

Thus  in  the  case  of  Thomas  v.  Davis(c),  although  the 
lands  passed  at  law,  yet  as  the  mistake  was  clearly  proved, 
the  words  were  restrained  as  between  the  persons  claiming 
under  the  wife,  whose  estate  was  comprised  by  mistake, 
and  the  heir  of  the  husband,  to  whom  the  estate  had  passed 
by  the  error ;  but  the  same  equity  was  not  administered 
against  the  mortgagee,  who  was  left  in  possession  of  the 
legal  right  which  the  generality  of  the  conveyance  had 
invested  him  with(113). 

(a)    Vide  supra,  p.  1 14. 

(fe)  Haigh  V.  De  la  Cour,  3  Campb.  319  ;  Emanuel  r.  Dane,  3 
Campb.  299;   Solomon  v.  Turner,  1  Stark.  51. 

(c)   Supra,  p.  155  ;  Reg.  Lib.  B.  1757,  fol.  33,  34  ;    1  Dick.  301.      . 

(113)  The  rights  of  creditors,  particularly,  will  be  protected. 
JWTeer  v.  Sheppard,  1  Bay,,  461.  Fitzpiatrick  v.  Smith,  1  Des.  340. 
See  Strong  v.  Glasgow,  1  Car.  Law  Rep.  279.  Hawkins  v.  Hawkins, 
Id.  496.  Ross  V.  JVorvell,  1  Wash.  14.  Although  parol  evidence  can- 
not be  received  to  contradict  an  instrument  in  writing,  as  between 
parties  and  privies ;  yet,  the  rule  does  not  apply  to  strangers,  who  have 
an  interest  in  knowing  the  truth.  Overseers  of  Berlin  v.  Overseers  of 
JVorivich,  10  Johns.  Rep.  229. 

In  Pennsylvania,  where  equity  is  a  part  of  the  law,  fraud  is  a  defence 
in  all  cases.  Therefore  in  Stubbs  v.  King,  14  S.  &  R.  206,  where  the 
action  was  brought  to  recover  the  purchase  money  stipulated  for  in  a 

(*170) 


OF  PAROL  EVIDENCE. 


209 


bond,  held,  that  the  defendant,  under  the  plea  of  payment  with  leave  to 
give  special  matter  in  evidence  agreeably  to  the  act  in  that  state,  might 
show  by  parol  evidence  a  misrepresentation  on  the  part  of  the  vendor  as 
to  the  boundaries  of  (he  land  ;  and  the  execution  of  such  bond  was  no 
extinguishment  of  the  fraud.     Gibson,  J.  in  delivering  the  judgment  of 
the  Court.     "  At   the  trial,  the   defendant  was  permitted   to  prove  that 
while  he  was  treating  for  the  purchase,  the  plaintiti'  jihowed  as  the  boun- 
dary, lines  which  are  since  found  not  to  be  so  in  fact,  and  that   the  lines 
designated  in  the  conveyance,  exclude  land  which  was  shown  to  him  as 
part  of  the  tract.     In  England   such  a  plea  would  not  be  tolerated  in  a 
court  of  law,  notwithstanding  in  Mr.  Chitty's  Treatise  on  Pleading,  (vol. 
2,  p.  495),  there  is  a  precedent  for  it ;  but  the  better  opinion  is,  that  on- 
ly that  sort  of  fraud  which  is  commhted  in  the  execution  of  the  instru- 
ment, can  be  pleaded  at  law.     Here,  where  equity  is  a  part  of  the  law» 
fraud  is  a  defence  in   all  cases.     But  in  the  conveyance  to  the  defend- 
ant, the  land    is  described  by  metes  and  bounds  ;  and  it  is  argued  that 
the  evidence  contradicted   the  deed,  by  showing  that  the  land  was  sold 
by  other  boundaries  ;  and  it  is  also  contended  that  the  declarations  of  the 
grantor  having  been  made  before  the  execution  of  the   deed,  were  inad- 
missible, all  former  stipulations  being  merged  in  the  act,  which  is  the 
consummation  of  the  contract.     It  is  generally  true,  that  the  execution  of 
a  conveyance  is  the  fulfilment  of  all  previous  bona  fide  stipulations,  be- 
cause such  stipulations' are  liable   to  be  varied  whilst   negotiations  are 
pending,  the  writing  which  perpetuates  the  evidence,  is  supposed  to  con- 
tain the  whole  contract.     But   where   a  continued  misapprehension  of 
material  facts  has  been  induced  on  the  part  of  one,  by  the  misrepresen- 
tations of  (he  other,  it  is  obvious  that  the  execution  of  the  writing  ought 
not  to   extinguish   the  right  of  the  injured   party  to  show  (he  fraud  by 
which  his   asi^ent  to   (he  contract  was  obtained.     This  is  a  particular 
head  of  equitable  relief;  in  affording  which  it  is  said  a  deed  cannot  be 
set   aside  in  part  for  fraud  ;  but  that  it  must  be  set  aside  in  loto,  even 
(hough   innocent   persons  are   interested   under  it.     In  our  practice,  the 
defence  is  considered  as  resting  on  (he  ground  of  want  of  consideration 
as  a  consequence  of  the  fraud  ;  and   the  relief  is  then  only  commensu- 
rate with  (he  actual  want  of  considera(ion. 

But,  in  general,  where  a  bond  is  given  for  the  purchase  money  of  land 
and,  before  payment,  it  is  discovered,  that  (here  are  incumbrances  existing 
the  plaintiff  caimot  recover,  without  deducting  the  amount  of  the  incum- 
brances, although  he  has  made  a  conveyance  to  the  defendant  wi(h  gen- 
eral vvarran(y  ;  bu(,  where  the  incumbrances,  wi(h  all  (he  circumstances 
attending  them,  arc  known  both  by  vendor  and  vendee,  and  the  vendee 
takes  from  the  vciulor  a  deed,  warranting  particularly  against  those  in- 
voi,.  J.  27 


210 


OF  PAROL  EVIDENCE. 


cumbrances,  and  gives  his  bond  for  the  purchase  money,  it  is  no  defence 
in  an  action  on  the  bond,  to  say,  that  the  incumbrances  were  still  exist- 
ing. This  was  settled  by  the  Court,  Tilghman,  C.  J.  in  Fuhrman  v. 
Loudon,  13  S.  &  R.  3S6,  which  was  a  case  of  legacies  charged  on  the 
land. 

In  Morris  v.  Buckley,  11  S.  &  R.  168,  where  a  scire  facias  was  sued 
for  the  purpose  of  recovering  the  purchase  money  of  land  under  a  mort- 
gage, which  was  claimed  by  another,  whose  title  had  been  ad- 
judged good  as  respected  the  mortgagor;  held,  that  it  was  sufficient  for 
the  defendant  to  execute  a  release  on  receiving  payment  for  the  partial 
failure  of  title  ;  and  that  there  was  no  necessity  to  tender  a  conveyance. 


[  211   ] 

DCHAPTER  IV. 

OF    THF,    CONSEQUENCES    OF    THE    CONTRACT. 

SECTION  I. 

Of  the  Rule  in  Equity^  that  the  Purchaser  is  entitled  to 
the  Estate  from  the  Time  of  the  Contract. 

Equity  looks  upon  tilings  agreed  to  be  done,  as  actual- 
ly performed(a),  (I)(114)  ;  consequently,  when  a  contract 
is  made  for  sale  of  an  estate,  equity  considers  the  vendor 
as  a  trustee  for  the  purchaser  of  the  estate  sold(6),  and 
the  purchaser  as  a  trustee  of  the  purchase-money  for  the 
vendor(c). 

Therefore  the  contract  will  not  be  discharged  by  the 
bankruptcy   of  either  the  vendor(J)    or   vendee(e),  (II). 

(a)  Francis's  Maxims,  max.  13;  1  Trea.  Eq.  chap.  6,  sec.  9.  See 
Callaway  r.  Ward,  1  Yes.  318,  cited. 

(6)  Atcherley  r.  Vernon,  10  Mod.  518;  Davie  r.  Beardsham,  1 
Cha.  Ca.  39 ;  and  Lady  Fohaine's  case,  cited  ibid. ;  and  see  1  Term 
Rep.  601  ;  and  Green  r.  Smith,  1  Atk.  572. 

(c)   Green  v.  Smith,  nbi  sitpra ;  Pollexfen  v.  Moore,  3  Atk.  272. 

{d)  Orlebar  v.  Fletcher,  1  P.  Wms.  737.  The  observation  in 
Goodwin  v.  Lightbody,  1  Dan.  156,  appears  to  be  inaccurate. 

(e)  See  3  Ves.  jun.  255 ;  and  Bowles  v.  Rogers,  6  Yes.  jiin.  95,  n. ; 
Whitworth  v.  Davis,  1  Yes.  &  Bea   545. 

(I)  A  lessee  insured  his  house,  the  lease  expired,  and  he  contracted 
for  a  new  lease.  Then  the  house  was  burned,  and  the  office  insisted 
that  at  the  time  of  burning  it  was  not  the  plaintifi''s  house  ;  but  Lord 
Chancellor  King,  and  afterwards  the  House  of  Lords,  held  otherwise. 
See  printed  cases,  Dom.  Proc.  1730. 

(II)  As  to  the  effect  of  an  extent  subsequently  to  a  contract,  see  Rex 
V.  Snow,  1  Price,  220,  cited. 


(114)   See  Crai^  v.  LesUr.,  3  "Wheat.  578. 

(*171) 


012  ^^  '^^'^  CONSEQUENCES  OF 

(*)Bat  an  act  of  bankruptcy,  upon  which  a  commission 
has  not  issued,  will  prevent  the  execution  of  the  agree- 
ment, as  neither  a  buyer  nor  a  seller  can  be  assured  that  a 
commission  may  not  issue  in  due  time,  in  which  case 
he  could  not  retain  the  estate  or  money  against  the 
assignees(/^. 

The  Bankrupt  Act,  6  Geo.  4(o-),  enacts,  that  if  any 
bankrupt  shall  have  entered  into  any  agreement  for  the 
purchase  of  any  estate  or  interest  in  land,  the  vendor 
thereof,  or  any  person  claiming  under  him,  if  the  assig- 
nees of  such  bankrupt  shall  not  (upon  being  thereto 
required)  elect  whether  they  will  abide  by  and  execute 
such  agreement,  or  abandon  the  same,  shall  be  entitled 
to  apply  by  petition  to  the  Lord  Chancellor,  who  may 
thereupon  order  them  to  deliver  up  the  said  agreement, 
and  the  possession  of  the  premises,  to  the  vendor,  or 
person  claiming  under  him,  or  may  make  such  other  order 
therein  as  he  shall  think  fit. 

The  death  of  the  vendor  or  vendee  before  the  convey- 
ance(/i.)  or  surrender(i),  or  even  before  the  time  agreed  upon 
for  completing  the  contract,  is  in  equity  immaterial(/c). 

If  the  vendor  die  before  payment  of  the  purchase- 
money,  it  will  go  to  his  executors,  and  form  part  of  his 
assets(/)  ;  and  even  if  a  vendor  reserve  the  purchase- 
money,  payable  as  he  shall  appoint  by  an  instrument, 

(/)  Lowes  V.  Lush,  Franklin  v.  Lord  Bro'.vnlow,  14  Ves.  jun.  647, 
550. 

{g)  c.  16,  s.  76. 

(/i)   Paul  V.  Wilkins,  Toth.  106. 

{i)  Barker  v.  Hill,  2  Cha.  Rep.  113. 

{k)  Winged  v.  Lefebury,  2  Eq.  Ca.  Abr.  32,  pi.  43  ;  cases  cited 
ante,  n.  (6). 

(1)  Sikes  V.  Lister,  6  Vin.  Abr.  641,  pi.  28;  Baden  v.  Earl  of  Pem- 
broke, 2  Vern.  213;  Bubb's  case,  2  Freem.  38;  Smith  r.  Hibbard, 
2  Dick.  712  ;  Foley  i'.  Percival,  4  Bro.  C.  C.  419 ;  and  see  Gilb.  Lex 
Praetor.  243. 

(*172) 


THE  CONTRACT.  213 

executed  in  a  particular  manner,  and  afterwards  exercise 
(*)his  power,  the  money  will,  as  between  his  creditors  and 
appointees,  be  assets(m). 

If  the  estate  is  under  a  contract  for  sale  at  the  date  of 
the  will,  a  devise  of  it  to  be  sold  for  a  charity,  will  not 
give  the  purchase-money  to  the  charity,  in  consequence 
of  the  mortmain  act,  as  it  is  called(n),  although  this 
point  was  in  the  first  instance  otherwise  decided(o)(115). 

A  vendee  being  actually  seised  of  the  estate  in  contem- 
plation of  equity,  must,  as  we  shall  hereafter  see,  bear 
any  loss  which  may  happen  to  the  estate  between  the 
agreement  and  conveyance,  and  will  be  entitled  to  any 
benefit  which  may  accrue  to  it  in  the  interim(;?)  ;  but  if 
he  obtain  possession  of  the  estate  before  he  has  paid  the' 
purchase-money,  and  begin  to  cut  timber,  equity  will 
grant  an  injunction  against  him(^). 

If  the  purchaser  was  tenant  at  will  of  the  estate,  the 
contract  determines  the  tenancy.  And  even  if  he  was 
tenant  for  a  term  certain,  the  agreement  determines  the 
relation  of  landlord  and  tenant,  and  in  equity,  at  least, 
the  landlord  cannot  call  for  rent(?'). 

It  is  a  consequence  of  the  same  rule,  that  a  purchaser 
may  sell  or  charge  the  estate,  before  the  conveyance  is 
executed(5)(116)  ;  but  a  person  claiming  under  him  must 

(j/i)   Thompson  v.  Townc,  2  Vein.  319  ;  466. 

(rt)  Harrison  v.  Harrison,  1  Riiss.  and  Myl.  71  ;   1  Taunt.  273. 

(o)    Middlcton  v.  Spicer,  1  Bro.  C.  C.  201. 

(p)  See  jjost,  ch.  5. 

(</)  Crockford  v.  Alexander,  15  Ves.  jun.  138. 

(r)   Daniels  v.  Davison,  16  Ves.  jun.  249. 

(s)  Seton  V.  Slade,  7  Ves.  jun.  265  ;  and  see  1  Ves.  220  ;  and  6 
Ves.  jun.  352.  Wood  v.  Griffith,  12  Feb.  1818.  MS.  see  post.;  2 
I5all  &  Beat.  522. 


(115)  See  Baptist  Association  v.  HarVs  Exrs.  4  Wheat.  1  ;  and  note 
I.  of  the  appendix  to  the  same  volume,  on  the  subject  of  charitable  be- 
quests, where  the  principal  authorities  relating  to  charities  are  collected. 

(116)  See  Barton  v.  Rushton,  4  Des.  373. 

(*173) 


2J4  ^"^^  '^^^^  CONSEQUENCES  OF 

submit  to  perform  the  agreement  in  toto,  or  he  cannot  be 
Ye[\eved(t). 

(^•)So  he  may  devise  the  estate,  if  freehold(^^)(117),  be- 
fore the  conveyance  ;  and  if  copyhold,  before  the  surren- 
der(if')  ;  and  that , although,  the  estate  is  contracted  for  at 
a  future  day(a')5  or  the  contract  is  entered  into  by  a  trus- 
tee for  him(7/) ;  and  the  devisee  will  be  entitled  to  have 
the  estate  paid  for  out  of  the  personal  estate  of  the  pur- 
chaser (z)(l  18). 

If  a  contractor  for  an  estate  by  his  will  give  a  legacy, 
which  he  directs  to  be  raised  by  sale  of  the  estate,  and 
the  contract  is  afterwards  vacated,  the  legacy  will  be 
payable  out  of  the  general  assets(«). 

The  rule  that  an  estate  contracted  for  may  be  devised 
before  it  is  conveyed  or  surrendered  to  the  purchaser,  has 
now  become  a  land-mark,  and  could  not  be  shaken  with- 
out endangering  the  titles  to  half  of  the  estates  in  the 
kingdom.     The  applicability  of  the  rule  to  freehold  estates 

(t)  See  Dyer  v.  Pulteney,  Barnard.  Rep.  Cha.  160  ;  a  very  particu- 
lar case. 

(m)  Darris's  case,  3  Salk.  85  ;  Milner  v.  Mills,  Mose.  123  ;  Alleyn 
V.  Alleyn,  Mose.  262  ;  Atcherley  v.  Vernon,  10  Mod.  518  ;  Gibson  v. 
Lord  Montfort,  1  Ves.  485. 

(tv)  Davie  v.  Beardsham,  1  Cha.  Ca.  39  ;  Nels.  Cha.  Rep.  76  ;  3 
Cha.  Rep.  2  ;  Greenhill  v.  Greenhill,  2  Vern.  679  ;  Free.  Cha.  329  ; 
Atcherley  v.  Vernon,  10  Mod.  518;  Robson  r.  Brown,  Oct.  1740,  S. 
P.  ;  and  see  9  Ves.  jun.  610. 

(x)  Commissioner  Trimuel's  case,  Mose.  265,  cited  ;  and  see  Atch- 
erley V.  Vernon,  10  Mod.  518  ;   Gibson  v.  Lord  Montfort,  1  Ves.  485. 

(y)  Greenhill  v.  Greenhill,  2  Vern.  679. 

(z)  Milner  v.  Mills,  Mose.  123  ;  Broome  r.  Monck,  10  Ves.  jun. 
697. 

(a)  Fowler  v.  Willoughby,  2  Sim.  and  Stu.  354.  Qu.  When  was 
the  contract  rescinded  1     The  legacy  was  considered  a  demonstrative 


(117)  See   M'Kimwnv.  Thompson,  3  Johns.   Ch.    Rep.  307,310. 
Livingstony.  JVewkirk,  3  Johns.  Ch.  Rep.  312,  316. 

(118)  See  Livingston  v.  JVewkirk,  3  Johns.  Ch.  Rep.  316. 

(*174) 


THE  CONTRACT. 


215 


has,  I  believe,  never  been  questioned,  but  in  Ardesoife 
V.  Bennet(6),  where  the  point  arose  as  to  a  copyhold 
estate,  Sir  Thomas  Sewell  decided  the  case  on  another 
ground,  and  appears  to  have  avoided  sanctioning  the  rule 
in  question  ;  and  in  a  manuscript  note  of  this  case  by  the 
name  of  Wilson  v.  Bennet,  it  is  said  that  the  Master  of 
(*)the  Rolls  was  of  opinion  that  the  copyhold  estate  did 
not  pass  by  the  will.  This  opinion  was  clearly  extra-judi- 
cial, and  cannot  be  deemed  subversive  of  the  numerous 
cases  which  have  established  the  contrary  doctrine  ;  and, 
indeed,  in  a  case  before  Sir  Thomas  Sewell,  a  few  years 
after  that  of  Ardesoife  v.  Bennet,  he  seems  to  allude  to  a 
devise  of  a  copyhold  estate  contracted  for,  as  sanctioned 
by  practice(c). 

An  estate  contracted  for  will  pass  by  a  general  devise 
of  all  the  lands  purchased  by  the  testator,  although  he  may 
have  purchased  some  estates  which  have  been  actually 
conveyed  to  him,  and  would  therefore  of  themselves 
satisfy  the  words  of  the  will(f/). 

On  the  other  hand,  it  seems  that  estates  recently  pur- 
chased and  actually  conveyed,  will  pass  with  estates  con- 
tracted for,  by  a  general  devise  of  all  the  manors,  fee.  for 
the  purchase  whereof  the  testator  has  already  contracted 
and  agreed(e)(I).  But  a  devise  of  estates  "for  the 
purchase  whereof  the  testator  has  only  contracted  and 
agreed,"  would  not  pass  estates  actually  conveyed  to  him 

(6)  2  Dick.  403  ;  and  see  15  Ves.  jun.  391,  392,  n. 

(c)  Floyd  V.  Aldridge,  1777,  5  East,  137,  cited  ;  and  see  Vernon  v. 
Vernon,  7  East,  8. 

(d)  Atcherly  v.  Vernon,  10  Mod.  518. 

(e)  St.  John  V.  Bishop  of  Winton,  Cowp.  94;  Lofft,  113,  349,  S. 
C.  ;  and  2  Blackst.  930. 

(I)  This,  however,  must  depend  upon  the  particular  circumstances  of 
each  case.  The  case  referred  to  can  scarcely  be  cited  as  a  binding 
authority  establishing  a  general  rule.  It  seems  that  the  House  of  Lords 
was  taken  by  surprise  in  affirming  the  judgment. 

(*176) 


21g  OF  THE  CONSEQUENCES  OF 

before  the  will,  unless  perhaps  they  were  recently  pur- 
chased, and  the  testator  had  not  contracted  for  any  other 
estate. 

If  a  man  possessed  of  a  term  of  years  contract  for  the 
purchase  of  the  inheritance,  the  term,  by  construction  of 
equity,  instantly  attends  the  inheritance ;  and  therefore, 
by  a  devise  of  the  estate  subsequently  to  the  contract,  the 
(*)fee-simple  would  pass,  although  not  actually  conveyed, 
and  the  term  as  attendant  on  it(/"). 

And  if  the  purchaser  had,  previously  to  the  purchase, 
made  his  will,  by  a  general  bequest  in  which  the  term 
would  have  passed,  yet  the  legatee  will  not  be  entitled  to 
it,  although  the  bequest  be  not  expressly  revoked  ;  because 
the  term,  by  the  construction  of  equity,  attended  the 
inheritance  immediately  on  the  purchase  of  the  fee,  and 
it  must  therefore  follow  it  in  its  devolution  on  the  heir 
or  devisee  (§•). 

The  relation  of  vendor  and  purchaser  in  such  a  case, 
where  it  is  formed  by  a  conveyance  of  the  inheritance, 
puts  an  end  to  the  covenants,  though  ever  so  large  and 
general,  which  existed  betvveen  lessor  and  lessee(/i). 

The  same  rule,  it  seems,  must  prevail  where  the  term  is 
even  specifically  bequeathed ;  for  if  the  fee  had  been 
actually  conveyed,  the  conveyanc  ewould  have  operated 
as  a  revocation («')  ;  and  as  the  vendee  is  seised  of  the  fee 
in  contemplation  of  equity,  although  the  conveyance  be 
not  executed,  the  same  rules  ought  to  be  adhered  to  in 
each  case. 

Although  the  estate  may,  subsequently  to  the  will,  be 

(/)  Per  Sir  Wm.  Grant,  in  Capel  v.   Girdler,  Rolls,  16  May  1804, 
MS. ;  9  Ves.  jun.  609  ;  Cooke  v.  Cooke,  2  Atk.  67. 
(o)  Capel  V.  Girdler,  ithi  sup. 
{h)  See  1  Bligh,  69. 

(i)  Galton  t'.  Hancock,  2  Atk.  424,  427,  430. 
(*176) 


THE  CONTRACT. 


217 


conveyed,  or  surrendered,  either  to  the  purchaser(/c),  or  to 
a  trustee  for  him(/),  yet  that  will  not  operate  as  a  revocation 
of  his  wiil(I).     The  legal  estate  will  of  course  descend  to 

{k)  Parsons-t).  Freeman,  3  Atk.  741  ;  Amb.  116  ;  and  see  1  Ves. 
jun.  256  ;  2  Yes.  jun.  429,  602  ;  6  Ves.  jun.  220;  8  Ves.  jun.  127  ; 
and  Prideux  v.  Gibbin,  2  Cha.  Ca.  144. 

(/)  Jenkinson  v.  Watts,  Lofft,  609,  reported  ;  cited  7}om.  Watts  v. 
Fullarton,  Dougl.  718;  Rose  v.  Cunynghame,  11  Ves.  jun.  650. 

(I)  In  Brydges  v.  Duchess  of  Chandos,  2  Y es.  jun.  429,  Lord  Rosslyn, 
in  treating  of  this  point,  said,  "  Another  case  is  supposed  to  arise,  in 
which  this  Court  determines  upon  a  principle  of  equity,  it  is  not  said 
directly  against  the  rule  of  law,  but  without  attending  to  what  the  law 
would  be  ;  that  is  the  case  where  an  equitable  estate  is  devised,  and 
after  the  will  the  legal  estate  is  taken,  the  Court  has  said  that  does  not 
revoke  the  will.  Tt  is  difficult  to  state  that,  at  this  time  of  day,  in  a 
court  of  law,  which  could  not  look  at  the  equitable  interest,  but  looks 
only  at  the  legal ;  but  as  the  legal  interest  is  only  a  shadow,  the  justice 
of  the  case  is  very  evident ;  but  it  is  a  decision  in  conformity  to  the  like 
case  at  law.  The  very  case  occurred  at  law  in  Roll.  Abr.  616,  pi.  3. 
Cestui  que  use,  before  the  statute  of  uses,  devises  ;  afterwards  the  feoffees 
made  a  feoffment  of  the  land  to  the  use  of  the  devisor ;  and  after  the 
statute  the  devisor  dies  ;  the  land  shall  pass  by  the  devise  ;  because, 
after  the  feoff'ment,  the  devisor  had  the  same  use  which  he  had  before. 
That  is  exactly  the  case  of  an  equitable  estate  devised,  and  a  convey- 
ance taken  afterwards  of  the  legal  estate  ;  and  this  Court  was  so  far 
from  determining  without  considering  what  the  rule  of  law  would  be, 
thai  here  is  the  very  point  decided  by  a  court  of  law. 

The  case  referred  to  is  thus  stated  in  Rolle : — "  Si  home  aiantfeffees 
a  son  use  dcvant  le  statut  de  27  H.  8.  tisl  devise  le  terre  al  auter,  et  puis 
lesfeffees  font  feffment  del  terre  al  use  del  devisor  et  puis  le  statut  le 
devisor  monist,  le  terre  passera  per  le  devise,  car  apres  le  feffment  le 
devisor  avoit  mesme  Vuse  que  il  avoit  devant." 

The  case  then  appears  to  be  this.  The  cestui  que  use  made  his  will, 
and  the  feoffees  afterwards  made  a  fcoff'ment  of  the  lands  to  his  use ; 
that  is,  enfeoffed  other  persons  to  the  use  of  him.  This  appears  by  the 
reason  given  for  the  decision,  namely,  "  because  after  the  feoff'ment  the 
devisor  had  the  same  use  which  he  had  before."  Whereas,  if  the  facts 
of  the  case  were  as  Lord  Rosslyn  supposed,  the  devisor  would,  before 
the  feoff'ment,  have  been  a  mere  cestui  que  use,  entitled  at  law  to  neither 
jus  in  re,  nor  jtis  ad  rem  ;  and  after  the  fcoffhient  he  would  have  been 

roh,  I.  28 


218  ^^  THE  CONSEQUENCES  OF 

(*)the  heir  at  law,  and  he  will  in  equity  be  deemed  a  mere 
trustee  for  the  devisee,  unless  the  devisee,  thinking  the 

actually  clothed  with  the  legal  seisin  of  the  estate ;  the  case,  therefore, 
seems  only  a  decision,  that  where  a  man  devises  an  equitable  estate^ 
a  transfer  of  the  legal  estate  to  other  persons,  in  trust  for  him,  is  not 
a  revocation  of  his  will.  And  such  is  still  the  rule  of  law  (Doe  v.  Pott, 
Dougl.  2d  edit.  710.)  as  well  as  of  equity,  JenkinsontJ.  Watt,  Lofft,  609. 
It  may,  however,  be  objected,  that  the  devisor  did  not  die  till  after 
the  statute  of  uses  ;  and  therefore  admitting  the  force  of  the  foregoing 
remarks,  it  still  appears  that  the  legal  estate  was,  by  the  operation  of 
the  act,  vested  in  the  devisor.  To  this  it  may  be  answered,  that  the 
statute  was  expressly  passed  to  prevent  alienation  of  estates  by  devise, 
although  it  declared  that  wills  made  before  the  statute,  by  persons  who 
were^  or  should  be  dead  before  the  1st  of  May  1536,  should  not  be  inva- 
lidated by  the  act.  We  must  therefore  presume  that  the  devisor  died 
before  that  time  ;  otherwise  the  will  would  have  been  void  by  virtue  of 
the  act  itself,  as  was  expressly  decided  in  a  case  where  cestui  qiie  use 
before  the  statute  devised  the  use ;  and  then  came  the  statute,  which 
transferred  the  use  into  possession  ;  and  although  the  testator  survived 
the  statute  of  wilhy  yet  the  operation  of  the  statute  of  uses  was  holden  to 
be  a  revocation,  because  the  use  ivas  thereby  gone,  1  Roll.  Abr.  616,  (R.) 
pi.  2 ;  Putbury  v.  Trevalion,  Dyer,  142,  b. — Indeed  the  statute  of  uses 
could  not  have  come  in  question  in  the  above  case,  if  the  feoffment  had 
been  made  to  the  devisor  himself. 

Lord  Hardwicke  seems  to  have  construed  the  case  in  Rolle  in  the 
sara,e  manner  as  Lord  Rosslyn  did,  (see  Sparrow  v.  Hardcastle,  3  Atk. 
798  ;  Ambl.  224),  although  he  appears  to  have  been  struck  with  the 
reason  given  for  the  decision ;  in  explanation  of  which,  he  is  in  Atkyns 
stated  to  have  said,  "  The  use  at  law  was  the  beneficial  and  profitable 
interest,  the  same  as  a  trust  in  equity,  and  which  remained  in  the  same 
manner  after  the  feoffment  as  before,  and  the  feoffees  there  granted 
the  dry  legal  estate  to  the  devisor."  In  Ambler,  his  Lordship  is  re- 
ported to  have  said,  "  Thus  the  law  considers  two  interests  in  the 
land  :  the  legal  estate,  and  the  use  :  now  the  use  remains  the  same  at 
the  making  the  devise,  and  at  the  death  of  the  devisor  ;  and  therefore 
accepting  the  grant  of  the  feoffees  makes  no  alteration  in  it." 

Lord  Hardvv'icke's  attempt  to  reconcile  what  he  conceived  to  be  the 
decision  in  this  case,  with  the  reason  given  for  it,  evinces  the  impossi- 
bility of  making  them  consistent.  According  to  his  argument,  the 
equitable  interest  was  not  merged  by  its  union  with  the  legal  estate,  but 
still  su'^sisted  in  the  contemplation  of  lav/. 

In  the  case  of  Willet  v.   Sandford,    1  Yes.  186,  Lord  Hardwicke 
(*177) 


THE  CONTRACT.  219 

estate  did  not  pass  by  the  will,  permit  the  heir  to  take  the 
estate,  and  acquiesce  in  this  for  a  long  while ;  in  which 
case  equity  will  not  relieve  him(m). 

(*)But  in  analogy  to  the  decisions  upon  legal  estates(n) 
it  has  been  held,  that  a  devise  of  a  freehold  estate  con- 
tracted for,  is  revoked  by  a  subsequent  conveyance  to  the 
(*)usual  uses  to  bar  do\ver(o),  even  where  the  contract 
was  by  parol(/?)j  but  it  is  difficult  to  say,  in  the  latter 
case,  that  a  conveyance  to  the  usual  uses  to  bar  dower  is 
not  within  the  contract  of  the  parties.  If,  however,  it 
were  stipulated  in  the  contract  that  the  estate  should  be 
conveyed  to  the  purchaser  in  fee,  or  to  such  uses  as  he 
should  appoint,  a  conveyance  to  uses  to  bar  dower, 
would  not,  it  is  apprehended,  operate  as  a  revocation  of 
the  will. 

(m)  Davie  v.  Beardsham,  1  Cba.  Ca.  39  ^  and  see  Pigott  tJ.  Waller, 
7  Ves.  jun.  98. 

(n)  See  Tickner  v.  Tickner,  3  Atk.  742,  cited ;  Kenyon  v.  Sut- 
ton, 2  Ves.  jun.  600,  cited ;  and  Nott  v.  Shirley,  ibid.  604,  n.  ;  and 
see  2  Ves.  jun.  429,  600  ;  6  Ves.  jun.  219  ;  8  Ves.  jun.  115,  211  ;  10 
Ves.  jun.  249,  256.  See  also  Luther  r.  Kidby,  3  P.  Wms.  170,  n.  and 
observe  the  distinction. 

(o)  Rawlins  v.  Burgis,  2  Ves.  &  Bea.  382.  There  was  an  appeal 
to  the  Lord  Chancellor,  which  was  for  particular  reasons  withdrawn. 
It  is  a  point  of  great  interest  and  nicety. 

(p)  Ward  V.  Moore,  4  Madd.  368. 

classed  the  different  interests  in  land  into  three  kinds  :  First,  the  estate 
in  the  land  itself;  the  ancient  common-law  fee.  Secondly,  the  use; 
which  was  originalhj  a  creature  of  equity ;  but  since  the  statute  of  uses 
it  draws  the  estate  in  land  to  it ;  so  that  they  are  joined,  and  make  one 
legal  estate.  Thirdly,  the  trust ;  which  the  common  law  takes  no  notice 
o/,  but  which  carries  the  beneficial  interests  and  profits  into  this  court, 
and  is  still  a  creature  of  equitij,  as  the  use  was  before  the  statute. 

This  judicious  classification  proves  (what  indeed  could  not  be  doubt- 
ed), that  the  true  principles  of  this  subject  were  familiar  to  this  great 
master  of  equity,  and  that  he  was  led  into  a  false  argument  by  endeav- 
oring to  account  for  a  principle  which  did  not  exist. 

Upon  the  point  in  this  note,  see  further,  n.  (a)  to  2  Ves.  &  Bea.  385, 

and  note(l)  to  Treat.  Powers,  5th  edit.  p.  155. 

(*178)    (*179) 


220  OF  THE  CONSEQUENCES  OF 

Estates  contracted  for  after  the  will,  will  not  puss  by 
it(9)(119) ;  nor  will  lands  pass  by  the  will,  although  con- 
veyed to  the  purchaser  subsequent  to  his  will  in  pursu- 
ance of  a  contract  prior  to  the  will,  unless  it  was  a  valid 
binding  contract(r).  But  in  these  cases  the  heir  at  law 
will  be  entitled  to  the  estate  for  his  own  benefit,  (*)and 
if  not  paid  for,  the  purchase-money  must  be  paid  out  of 
the  personal  estate  of  his  ancestor(5),  and  that,  although 
he  unite  in  himself  the  three  characters  of  vendor,  heir, 
and  executor(/).  The  estate  will,  however,  be  assets  in 
the  hands  of  the  heir. 

So  if  the  purchaser  die  intestate,  the  heir  will  in  like 
manner  be  entitled  to  have  the  estate  purchased  for 
him(120)  :  and  if  his  ancestor  die  before  the  conveyance 

(g)  Langford  t).  Pitt,  2  P.  Wms.  629  ;  Alleyn  v.  Alleyn,  Mose.  262  ; 
Potter  V.  Potter,  1  Ves.  437 ;  and  see  1  Atk.  673  ;  White  v.  White,  2 
Dick.  622  ;  Reg.  Lib.  B.  1776,  fol.  650. 

(r)   Rose  v.  Cunynghame,  11  Ves.  jun.  50. 

(s)  Milnerv.  Mills,  Mose.  123;  and  see  2  P.  Wms.  632;  3  P. 
Wms.  224 ;  Broome  v.  Monck,  10  Ves.  jun.  597. 

(f)   Coppin  V.  Coppin,  Sel.  Cha.  Ca.  28;  2  P.  Wms.  291. 

(119)  See  Jackson  v.  Poller,  9  Johns.  Rep.  312.  Jiggilsv.  Maney, 
1  Murph.  258.  Johnson  v.  Hanleij,  Tay.  305.  Cogdell  v.  Cogdell,  3 
Des.  346.  Livingston  v.  JVexvkirk,  3  Johns.  Ch.  Rep.  312.  Smith  v. 
Codringlon,  8  Cranch,  66.  JS'VKinnon  v.  Thompson,  3  Johns.  Ch. 
Rep.  307.  Burke  v.  Young's  Les.  2  Serg.  &  Rawle,  387.  Under 
the  statute  of  Virginia,  relating  to  wills,  after  acquired  lands  may  pass 
by  will,  provided  such  be  the  clear  intention  of  the  testator.  Smith  v. 
Codringlon,  ut  supra.  It  is  a  rule  of  the  common  law,  that  a  will,  as 
to  lands,  speaks  at  its  date,  and  as  to  personal  property,  at  the  time  of 
the  testator's  death.  Id. 

(120)  Champion  v.  Brown,  6  Johns.  Ch.  Rep.  398,  402.  Living- 
ston V.  JVeiokirk,  3  Johns.  Ch.  Rep.  312. 

"  In  Pennsylvania,  having  no  Court  of  Equity,  we  are  compelled  to 
consider  that  as  done,  which  Chancery  would  enforce  the  performance 
of,  and  this  is  the  reason  why  an  action  of  ejectment  may  be  supported 
in  this  state  on  an  equitable  title.  Per  Gibson,  J.  in  Vincent  v.  Huff, 
4  S.  &  R.  301.     Therefore,  where  one  has  contracted  for  the  purchase 

(*180) 


THE  CONTRACT.  221 

is  executed,  the  heir  may  devise,  charge,  or  sell  the  es- 
tate, in  the  same  manner  as  the  ancestor  himself  might 
have  done(M). 

If  the  executor  complete  the  purchase,  and  take  the 
conveyance  in  his  own  name,  he  will  be  a  trustee  for  the 
heir  or  devisee(i;).  And  if  the  assets  cannot  be  got  in, 
and  the  real  representative  pay  for  the  land  out  of  his 
own  pocket,  he  may  afterwards  call  upon  the  personal 
estate  to  reimburse  him(x).  So,  if  the  personal  estate  is 
insufficient  to  perform  the  contract,  and  the  agreement 

(m)  Langford  v.  Pitt,  2  P.  Wms.  629. 
(v)  Alleyn  v.  Alleyn,  Mose.  262. 
(x)  See  10  Ves.  jun.  614,  615. 

of  land,  paid  the  money  and  received  possession,  he  is  regarded  in 
the  light  of  a  vendee  with  a  deed  executed  and  delivered  to  him. 
Moody  V.  Vandyke,  4  Biim.  41.  But,  where  the  plaintiff  claiming  under 
an  equitable  title,  had  been  in  possession  ;  and  had  made  improve- 
ments ;  but  had  not  paid  or  tendered  the  purchase  money ;  and  the 
Court  at  the  trial  laid  it  down  in  general  terms  only,  that  if  the  purchase 
money  was  paid,  the  plaintiff  might  recover,  yet  because  the  converse  of 
the  proposition  was  not  stated  to  the  jury,  the  Court  ordered  a  new  trial. 
4  S.  &  R.  298,  supra. 

The  point  decided  in  Harris  v.  Bell,  10  S.  &  R.  39.  was,  that  if  no 
time  be  stipulated  in  the  agreement  for  the  sale  in  respect  to  the  pos- 
session ;  but  the  vendee  is  permitted  by  the  vendor  to  take  possession 
before  the  time  agreed  upon  for  the  payment  of  the  money ;  the  money 
not  being  paid,  the  vendor  forcibly  regains  the  possession  :  held,  that 
the  vendee  was  entitled  to  recover  the  possession  without  a  previous 
tender  of  the  purchase  money,  on  the  ground,  that  the  vendor  having 
put  the  vendee  into  possession  before  payment  of  the  money,  it  amount- 
ed to  a  waiver  of  the  payment.  But  ejectment  is  in  the  nature  of  a  bill 
for  specific  performance  ;  but  if  the  vendee  declines  paying  the  purchase 
money  ;  and  the  time  has  elapsed,  the  vendor  can  recover  the  posses- 
sion. The  remedies  for  vendor  and  vendee,  are  mutual ;  for  ejectment 
will  lie  against  vendor  by  vendee  on  articles  of  agreement,  after  tender 
of  the  purchase  money.  4  Binn.  177.  And  where  the  vendee  has 
paid  part  of  the  money  ;  and  declined  payment  of  the  residue,  still  the 
vendor  may  recover  in  ejectment  in  such  case.  Martin  r.  Willink  et 
al.  7  S.  &  R.  297. 


2^2  O^  I'^'tE  CONSEQUENCES  OF 

is  on  that  account  rescinded,  jet  the  heir  or  devisee  will, 
it  should  seem,  be  entitled  to  the  personalty  as  far  as  it 
extends.  And  it  has  been  decided,  that  if  by  reason  of 
the  complication  of  the  testator's  affairs,  the  purchase- 
money  cannot  be  immediately  paid,  and  the  vendor  for 
that  reason  rescinds  the  contract,  yet  on  the  coming  in 
of  the  assets,  the  devisee  of  the  estate  contracted  for  may 
compel  the  executor  to  lay  out  the  purchase-money  in  the 
purchase  of  other  estates  for  his  benefit(2/). 

But  if  the  heir  not  being  entitled  to  have  the  estate 
paid  for  out  of  the  personal  estate,  actually  obtain  and 
(*)apply  the  personal  estate  in  payment  of  the  purchase- 
money,  the  persons  entitled  to  the  personal  estate  will 
not  be  entitled  to  the  land,  but  only  to  a  charge  on  it  for 
the  amount  of  the  money  wrongly  applied(2^). 

Any  codicil  executed  according  to  the  statute  of  frauds 
will  amount  to  a  re-publication  of  a  prior  will  of  lands  ; 
and  therefore,  if  a  purchaser,  previously  to  a  contract, 
make  a  general  devise  of  all  his  lands,  and  after  the  con- 
tract execute  a  codicil,  according  to  the  statute  of  frauds, 
unless  an  intention  appear  not  to  affect  it(a),  the  after- 
purchased  estate  will  pass  under  the  devise  in  the  will(121), 

(y)  Whittaker  r.  Whittaker,  4  Bro.  C.  C.  31;  Broome  ?;.  Monck, 
10  Yes.  jun.  597.  Vide  infra.    See  Mark  v.  Willington,   1  Beatty,  128. 

(r)  Savage  v.  Carroll,  1  Ball.  &  Beatty,  265.  See  jwst,  ch.  15, 
s.  3. 

(a)  Lady  Strathmore  v.  Bowes,  7  Term.  Rep.  482  ;  2  Bos.  &  Pull. 
500  ;  Smith  v.  Dearmer,  3  You.  &  Jerv.  278.  Monypenny  r.  Bristow,  2 
Russ.  &  Myl.  117. 

(121)  The  republication  of  a  will,  to  be  effectual  to  pass  lands  ac- 
quired subsequently  to  the  will,  must  be  attended  with  all  the  legal  for- 
malities. Jachsonw  Potter,^  Johns.  Rep.  312.  Jackson  v.  Hollo- 
way,  7  Johns.  Rep.  394.  See  Burke  v.  Young's  Les.  2  Serg.  & 
Rawle,  387.  In  South  Carolina,  so  far  as  regards  personal  property 
acquired  after  the  will,  a  republication  need  not  be  in  writing,  or  in  any 
particular  form  ;  but  the  rule  in  regard  to  real  estate  is  otherwise.  Cog- 
dell  V.  Cogdell,  3  Des.  366. 

(*181) 


THE  CONTRACT. 


223 


although  legacies  only  are  given  by  the  codicil,  and  no  no- 
tice is  taken  of  the  estate(6). 

It  has  been  thought  that  this  rule  would  not  apply 
where  the  devise  in  the  will  is  of  "  the  estates  of  which 
I  am  now  seised ;"  but  the  codicil  makes  the  will  speak 
as  from  the  date  of  the  codicil,  and  therefore  there  seems 
to  be  no  solid  ground  for  the  supposed  distinction. 

And  if  a  purchaser,  previously  to  a  contract,  by  a  will 
duly  executed  according  to  the  statute,  direct  his  after- 
purchased  lands  to  be  conveyed  to  the  uses  of  his  will 
and  make  a  provision  for  his  heir  at  law,  and  afterwards 
die  without  republishing  his  will,  and  the  after-pur- 
chased lands  devolve  on  the  heir  at  law,  equity  will  put 
the  heir  to  his  election,  and  not  permit  him  to  take  both 
the  descended  estate,  and  the  provision  made  for  him  by 
the  will(c).  But  to  raise  a  case  of  election  the  words 
(*)must  be  unequivocal ;  and  therefore  a  direction  to  exe- 
cutors to  sell  whatever  real  estates  the  testator  might  die 
possessed  of,  was  held  not  to  mean  after-purchased 
estates((/).  And  yet  a  devise  and  bequest  of  all  my 
estate,  rent  and  effects,  real  and  personal,  which  I  shall 
die  possessed  of,  has  since  been  decided  to  have  that 
operation(e). 

In  purchasing,  therefore,  of  an  heir  at  law  who  claims 
an  estate  conveyed  to  his  ancestor  after  the  date  of  his 
will,  the  purchaser  should  be  satisfied  of  three  points  : 
viz.  1st,  That  the  contract  was  not  entered  into  by  the 
testator  previously  to  making  his  will.     2dly,  That  no 

{!))  Barnes  v.  Crowe,  1  Ves.  jun-  486  ;  Pigolt  r.  Waller,  7  Ves.  jun. 
98 ;  Goodtitle  v.  Meredith,  2  Mau.  &  Selw.  5  ;  Hulme  r.  Heygate,  1 
Merr.  285. 

(c)  Thellusson  v.  Woodford,  MS.  13  Ves.  jun.  209,  affirmed  in  Dom. 
Proc.  ;  and  see  Treat,  of  Powers,  ch.  6,  sect.  2,  div.  II. 

{(^)  Kack  r.  Kett,  1  Jac.  534.  Johnson  v.  Telford,  1  Russ.  &  Myl. 
244. 

(c)  Churchman  r.  Ireland,  1  Russ.  &  Myl.  250. 

(*182) 


224  ^^  ^^^  CONSEQUENCES  OF 

codicil  was  afterwards  executed  by  him,  according  to  the 
statute  of  frauds,  by  which  the  lands,  although  not  in 
contemplation,  passed.  And,  3dly,  If  the  will  affects  to 
pass  all  the  estates  which  the  vendor  might  thereafter 
acquire,  that  the  heir  at  law  does  not  take  any  interest 
under  the  will. 

And  here  we  may  observe,  that  if  a  man  make  a  dispo- 
sition by  will  of  all  his  copyhold  estates  generally,  and 
afterwards  purchase  other  copyhold  estates,  and  surrender 
them  to  the  uses  declared  by  his  will(/),  or  even  to  the 
uses  declared  by  his  will  of  and  concerning  the  same(g), 
the  after-purchased  estates  will  pass  under  the  general 
devise,  although  the  will  was  not  re-published.  Therefore, 
where  a  copyhold  estate  has  been  surrendered  to  the  use 
of  a  will,  and  the  purchaser  is  buying  of  the  heir  at  law, 
who  claims  in  the  absence  of  any  devise  subsequently  to 
the  purchase  by  his  ancestor,  he  must  be  satisfied  that  the 
(*)estate  did  not  pass  under  any  general  devise  in  a  will 
prior  to  the  purchase.  This  point  is  not  likely  to  arise, 
since  the  act  for  rendering  a  surrender  to  a  will  unneces- 
sary(/i). 

From  the  time  of  the  contract,  the  purchaser,  and  not 
the  vendor,  being  owner  of  the  estate  in  equity,  it  follows, 
that  if  a  man  devise  his  estate,  and  afterwards  contract 
for  the  sale  of  it,  the  devise  will  thereby  be  revoked  in 
equity  (iX^22). 

(/)  Heylyn,  v.  Heylyn,  Cowp.  130  ;  Lofft,  604.  This  point  has 
since  been  so  decided  at  nisi  prius. 

(g)  Attorney-general  v.  Vigor,  8  Yes.  jun.  256.  See  Smart  v.  Pru- 
jean,  6  Ves.  jun.  565  ;  and  the  last  ed.  of  Gilbert  on  Uses,  n.(5),  p.  72. 

(/i)  55  Geo.  3.  c.  192. 

(i)  Ryder  v.  Wager,  and  Cotter  v.  Lsyer,  2  P.  Wms.  332,  623 ; 
and  see  2  Ves.  jun.  436;  Vawser  v.  Jeffrey,  16  Ves.  jun.  619;  3 
Russ.  479. 

(122)  It  is  a  settled  principle  in  equity,  that  if  a  conveyance  be  only 
for  a  partial  purpose,  as  to  introduce  a  charge  upon  the  estate,  and  does 

(*183) 


THE  CONTRACT. 


225 


And  even  where  an  estate  was  by  a  will  directed  to  be 
sold,  and  the  money  to  be  paid  to  certain  persons,  and  the 
testator  himself  afterwards  sold  the  estate,  it  was  held, 
that  the  legatees  were  not  entitled  to  the  money  produced 
by  the  s'd\e(j). 

If,  however,  an  agreement  be  such  as  a  court  of  equity 
will  not  carry  into  execution  against  the  representatives, 
there  seems  ground  to  contend  that  it  will  not  revoke  the 
will,  because  the  agreement  can  operate  as  a  revocation  in 
equity  only  ;  and  therefore,  if  equity  will  not  sustain  the 
agreement  in  respect  of  which  the  will  is  held   to  be  re- 
voked, there  appears  to  be  no  solid  reason  why  the  devise 
of  the  estate  should  not  take  effect.  In  Onions  v.  Tyrer(^) 
the  Lord  Chancellor  held,  that  a  second   will,  devising 
lands  to   the  same  person  as  the  former,  and  revoking  all 
former  wills,  but  not  duly  executed,  should   never  revoke 
the  former  will  so  as  to  let  in  the  heir ;  nay,  if  by  the 
latter  will  the  premises  in  question  had  been  given  to  a  third 
person,  it  should  never  have  let  in  the  heir,  in  regard  the 
meaning  of  the  second  will  was  to  give  the  second  devisee 
what  it  had  taken  from  the  first,  without  any  consideration 
(*)had  to  the  heir ;  and  if  the  second  devisee  took  nothing, 
the  first  would  have  lost  nothing. 

These  principles  ought,  perhaps,  to  be  referred  to  the 
words  of  the  statute  of  frauds(/)  ;  but  still  as  an  agree- 
ment is  only  an  equitable  revocation,  the  same  reasoning 
applies  to  the  case  before  us.  Where  a  man  contracts  for 
the  sale  of  his  estate,  he  intends  to  increase  his  personal 

{j)  Arnald   v.  Arnald,  1    Bro.   C.  C.  401  ;  2  Dick.  646.     Kenbold 
V.  Roadknight,  1  Russ.  &  Myl.  677 ;   1  Toml.  492. 
{k)   IP.  Wms.  345.     See  7  Ves.  jun.  379. 
(/)  See  Pow.  Dev.  641. 


not  afiect  the  interest  of  the  testator  beyond  that  special  purpose,  it  ia 
only  a  partial  revocation  of  the  will  ;  and  equity  will  hold  the  party  a 
trustee,  not  for  the  heir,  but  for  the  devisee.  Livingslon  v.  Livingslont 
3  Johns.  Ch.  Rep.  16.5.  per  KENT. 

VOL.   1.  29  (*184) 


226  OF  THE  CONSEQUENCES  OF 

estate,  and  not  to  benefit  his  heir ;  and  if  the  Court  will 
not  carry  the  agreement  into  a  specific  execution  for  the 
benefit  of  the  personal  estate,  "  the  personal  estate  takes 
nothing,  and  the  devisee  can  have  lost  nothing." 

In  the  two  cases(m)  in  which  it  has  been  holden,  that 
an  agreement  will  revoke  a  will  in  equity,  it  makes  a  term 
of  the  proposition,  that  the  agreement  amounts  in  equity 
to  a  conveyance.  And  it  should  seem  that  Lord  Eldon 
was  of  this  opinion,  for  in  Knollys  v.  Alcock(7i),  where  it 
was  contended  that  an  agreement  in  equity  is  a  revocation 
only  where  it  can  b^  performed,  his  Lordship  did  not 
deny  the  rule  as  stated,  but  showed,  that  the  agreement 
in  that  case  was  such  as  equity  would  perform(o),  (I)  ; 
and  in  Clynn  v.  hkt\er(p),  Lord  Mansfield  laid  it  down, 
that  covenants  had  never  been  allowed  to  be  revocations, 
unless  ivhere  the  covenantee  has  a  right  to  a  specific  per- 
formance. 

(*)  Whether  an  abandonment  of  an  agreement  will  prevent 
the  contract  from  operating  as  a  revocation  of  a  prior  will, 
seems  to  be  a  more  doubtful  point.  In  the  case  of  Knollys 
V.  Alcock,  before  referred  to,  it  was  also  contended,  that 
an  agreement  which  was  abandoned  was  not  a  revocation 
in  equity ;  but  Lord  Eldon  said,  he  did  not  admit,  that  if 
there  is  an  agreement  in  equity  which  at  the  moment  is 
a  completely  operative  revocation,  a  subsequent  abandon- 

(m)   Ryder  v.  Wager,  and  Cotter  v.  Layer,  ubi  sup. 

(n)  7  Ves.  jun.  658.  There  was  an  appeal  from  the  decision  in  this 
case,  which  has  been  compromised  ;  and  see  Mayor  v.  Gowland,  2 
Dick.  563.     See  also  2  Ves.  jun.  436. 

(0)  See  Savage  v.  Taylor,  C  ases  T.  Talb.  234. 
ip)   1  Blackst.  345.       ■* 

(1)  It  appears  by  an  abstract  of  the  title  to  the  estate,  in  respect  of 
which  the  litigation  in  Savage  r.  Taylor  was  commenced,  that  the  heir 
at  law  of  the  testator,  in  his  answer  to  the  bill  of  the  devisee,  insisted 
that  if  the  will  was  originally  valid,  yet  it  was  revoked  by  the  articles 
for  sale,  although  the  Court  ought  not  to  carry  them  into  execution, 

(*186) 


THE  CONTRACT. 


227 


ment  will  of  necessity  set  up  the  will.     His  Lordship 
added,  that  he  did  not  say  whether  it  would  be  so  or  not, 
for  he  was  of  opinion  he  could  not  raise  the  question  in  the 
case  before  him,  as  the  agreement  was  never  abandoned. 
Sir  Wm.  Grant  upon  the  same  point  said,  that  he  very 
much  doubted  whether  the  abandonment  of  the  contract 
in  the   testator's  life-time  would  set  up  the  will  without 
a  republication.    But  where  the  will  is  revoked  at  the  testa- 
tor'^s  death  by  the  contract,  of  course  no  subsequent  event 
can  render  the  will  operative  and  effectual(^).     In  the  first 
case  in  the  books(?'),  in  which   the  question  arose  whether 
a  covenant  to  convey  an  estate  devised  should    operate 
at  law  as  a  revocation  of  the  will,  it  was  holden,  that  such 
a  covenant  without  more,  was  not  any  revocation  of  the 
will ;  because  perhaps  the  devisor's  intention  would  alter 
before  performance  of  the  covenant.     At  law,  therefore, 
a  contract  does  not  revoke  the  will  ;  but  a  conveyance  in 
pursuance  of   the    contract  would  of   course  operate  as 
a  revocation,  or  to  speak  more  technically,  as  an  ademption. 
Now  it  may  be  contended,  that  the  same  rule  must  pre- 
vail in  equity,  and  that  a  contract  for  sale  ought  not  to 
affect  the  validity  of  a  prior  will,  until  it  is  carried  into 
execution,  or,  which  in  equity  is  tantamount  to  a  convey- 
ance, until  the  Court  decree  a  specific  performance  of  it. 
(*)  While  an  agreement  rests  in  fieri,  and  the  validity  of  it 
has  not  been  ackno\A  lodged  by  a  decree,  it  seems  equitable 
that  the  owner  should  be  at  liberty,  with  the  concurrence 
of  the  other  party,  to  alter  his  mind.     Indeed  in  the  ab- 
sence of  intention  there  seems  to  be  no  weighty  distinction 
between  an  agreement  which  has  been  abandoned,  and 
an  agreement  which  equity  will  not  perform.     If  a  man 
make  a  second  will  without  expressly  revoking  the  first, 
and  afterwards  cancel  the  second  will,  the  first  is  revived, 


{q)  Bennett  v.  Lord  Tankerville,  19  Ves.  170. 

()•)  Montague  v.  Jefferies,  1  Ro.  Abr.  615,  (P.)  pi.  3. 

(*186) 


228  ^^  '^^^  CONSEQUENCES  OF 

the  second  will  being  considered  only  intentional (5) ; 
and  although  it  is  true  that  a  will  is  ambulatory  till  the 
death  of  the  testator,  yet  the  same  ground  may  be  taken 
in  support  of  a  will  impliedly  revoked  by  an  agreement 
afterwards  abandoned.  Why  should  not  a  mere  agree- 
ment be  deemed  ambulatory  till  it  is  completed,  when  it 
is  clear  that  the  parties  may  rescind  the  agreement,  and 
the  estate  of  the  devisor  is  not  altered  so  as  to  effect 
a  revocation  at  law  ? 

The  seller  after  the  contract  and  before  the  convayance 
is  not  considered  so  absolutely  a  trustee  as  to  prevent  the 
estate  from  passing  by  a  devise  by  him,  subsequently  to  tlie 
contract,  of  his  real  estate  to  trustees  to  sell(^).  But  where 
an  estate  under  contract  was  devised  expressly  by  name, 
it  was  held  that  the  legal  estate  only  passed  to  enable  the 
devisee  to  carry  the  contract  into  execution,  and  that  the 
devisee  was  not  entitled  to  the  purchase-money  benefi- 
cially (i^).  The  principle  of  this  decision  will  necessarily 
furnish  many  exceptions  to  the  rule  laid  down  in  the  case 
of  Wall  V.  Bright. 

When  an  estate  is  contracted  to  be  sold,  it  is  in  equity 
(*)considered  as  converted  into  personalty  from  the  time 
of  the  contract(I)  ;    and  this  notional  conversion  takes 

(s)   Goodright  v.  Glazier,  4  Burr.  2512. 

{t)  Wall  V.  Bright,  1  Jac.  &  Walk.  490. 

(h)  Knollys  v.  Shepherd,  1  Jac.  &  Walk.  499,  cited.  This  case 
was  affirmed  in  1825  in  Dom.  Proc.  MS.  The  decision  depended  up- 
on the  particular  terms  of  the  devise. 

(I)  The  decision  in  the  case  of  Foley  v.  Percival,  4  Bro.  C.  C.  419, 
seems  to  depend  on  the  personal  estate  having  been  charged  with  the 
legacies ;  and  the  dictum  of  the  Lord  Chancellor,  that  an  estate  con- 
tracted to  be  sold,  is  not  converted  into  personalty,  where  it  will  dis- 
appoint the  testator's  intention  as  to  the  payment  of  legacies  charged 
upon  the  estate  by  his  will,  appears  not  to  be  warranted  by  eilher 
principle  or  authority.  The  case  of  Comer  v.  Walkley,  2  Dick.  649, 
is  misreported.     See  post,  ch.  9. 

^*187) 


^  THE  CONTRACT.  229 

place,  although  the  election  to  purchase  rests  merely  with 
the  purchaser(v)(123). 

Thus  in  a  case  before  Lord  Kenyon,  at  the  Rolls(a;)j 
Whitmore  demised  to  Douglas  for  seven  years,  with  a 
covenant,  th^tt  if  the  tenant,  after  the  29th  of  September 
1761,  and  before  the  29th  of  September  1763,  should 
choose  to  purchase  the  inheritance  for  3,000/.,  Whitmore 
would  convey  to  him(II).  In  1761,  before  any  election, 
Whitmore  died,  and  left  all  his  real  estate  to  Bennett  in 
fee,  and  all  his  personal  estate  to  Bennett  and  his  sister 
equally.  In  1765,  before  the  time  mentioned.  Waller, 
who  purchased  the  lease  and  benefit  of  the  agreement 
from  Douglas,  called  on  Bennett  to  convey  for  3,000/.  ; 
which  conevyance  was  made  in  consideration  of  that  sum. 
Afterwards  the  sister  and  her  husband  filed  a  bill  against 
the  representative  of  Bennett,  claiming  a  moiety  of  the 
3,000/.  and  interest,  and  it  was  decreed  accordingly. 

This  case  has  been  recently  followed  by  Lord  Eldon(?/). 
But  it  must  be  observed,  that  until  the  option  is  declared, 
the  rents  belong  to  the  heir  or  devisee. 

Upon  the  same  principle  it  has  been  determined,  that 

(v)  Lawes  v.  Bennett,  7  Ves.  jun.  436  ;  14  Ves.  jun.  596,  cited ; 
S.  C.  cited,  16  Ves.  253,  254,  nom.  Douglas  v.  "VVhitrong  ;  Ripley  v. 
Watcrworth,  7  Ves.  jun.  425. 

(.r)  Whitmore's  case,  tibi  sup. 

(y)   Townley  v.  Bedvvell,  14  Ves.  jun.  19. 

(II)  As  to  rights  of  pre-emption  given  by  will,  and  the  mode  in 
which  they  will  be  carried  into  execution,  see  Earl  of  Radnor  v.  Shafto, 
11  Ves.  jun.  448  ;  as  to  a  right  of  pre-emption  of  timber,  which  a  lessee 
is  authorized  to  cut  down,  see  Goodtitle  v,  Saville,  15  East,  87. 

(123)  See  Craig  v.  Leslie,  3  Wheat.  563,  677.  Postell  v.  PosleWs 
Exrs.  1  Des.  173.  And  where  the  whole  beneficial  interest  in  the 
land  in  one  case,  or  in  the  money  in  the  other,  belongs  to  the  heir,  or 
devisee,  as  the  case  may  be,  a  court  of  equity  will  permit  him  to  take 
the  money  or  the  land,  at  his  election,  if  he  elect  before  the  conversion 
is  made.       Craig  v.  Leslie^  3  Wheat.  578. 


230  OF  THE  CONSEQUENCES  OF 

(*)if  a  man  having  a  timber  estate,  agree  to  sell  a  given 
quantity  per  annum,  to  be  chosen  by  the  buyer,  although 
the  owner  die,  and  the  option  is  in  the  buyer,  yet  the  tim- 
ber cut  after  the  owner's  death,  however  large  in  quanti- 
ty, will  be  part  of  his  personal  estate(2:). 

The  rule  established  by  these  decisions  must  frequently 
subvert  the  vendor's  intention  ;  where,  therefore,  a  vendor 
intends  the  estate,  as  between  his  real  and  personal  re- 
presentatives, to  be  deemed  real  estate,  a  declaration  to 
that  effect  should  be  inserted  in  the  agreement  for  sale. 

Disputes  also  often  arise  between  the  real  and  personal 
representatives,  where  a  person  purchases  an  equity  of 
redemption ;  the  real  representative  mostly  claiming  to 
have  the  mortgage  money  paid  off  out  of  the  personal 
estate,  and  the  personal  representative  resisting  the  de- 
mand. Unless  the  mortgage  money  form  part  of  the 
consideration  money  for  the  estate,  or  the  purchaser,  by 
communication  with  the  mortgagee,  clearly  take  the 
mortgajre  debt  on  himself,  as  between  his  heir  and  exe- 
cutor,  it  will  be  considered  a  charge  on  the  land  ;  the 
mere  covenanting  with  the  mortgagor  to  pay  the  debt, 
will  not  make  it  his  personal  debt ;  and  consequently  his 
personal  estate,  as  between  the  heir  and  executor,  will 
only  be  the  auxiliary  fund  for  payment  of  it(f«)(124). 

In  cases  of  this  nature  equity  always  adverts  to  the 
intention  of  the  purchaser,  and  disputes  on  this  subject 
may  therefore  be  prevented,  by  the  insertion  of  a  short 
declaration  in  the  purchase-deed,  whether  the  personal 
estate  of  the  purchaser  shall  or  shall  not,  as  between  his 

{z)   See  7  Ves.  jun.  437. 

(a)  On  this  point  see  Evelyn  v.  Evelyn,  2  P.  Wras.  659  ;  and  the 
cases  in  Mr.  Cox's  note  ;  to  which  add,  Hamilton  v.  Woiley,  2  Ves. 
jun.  62  ;  Woods  v.  Huntingford,  3  Ves.  jun.  128  ;  Buller  v.  Buller,  5 
Ves.  jun.  517  ;  Waring  v.  Ward,  5  Ves.  jun.  670  ;  and  7  Ves.  jun.  332  ; 
and  Lord  Oxford  v.  Lady  Rodney,  14  Ves.  jun.  417. 

(124)  Duke  of  Cumberland  v.  Coclrington,  3  Johns.  Ch.  Rep.  229. 

(*188) 


THE  CONTRACT. 


231 


heir  and  executor,  be  the  primary  fund  for  payment  of 
the  mortgage  money. 

(*)But  (to  return  to  the  point  under  consideration)  if 
upon  the  death  of  the  vendor  a  title  cannot  be  made,  or 
there  was  not  a  perfect  contract,  or  the  Court  should  think 
the  contract  ought  not  to  be  executed,  in  all  these  cases 
there  is  no  conversion  of  real  estate  into  personal  in  consi- 
deration of  the  Court,  upon  which  the  right  of  the  execu- 
tor on  the  one  hand,  and  of  the  heir  or  devisee  on  the 
other,  depends  ;  and  therefore  the  estate  will  go  to  the 
heir  at  law  of  the  vendor,  in  the  same  manner  as  if  no 
contract  had  been  entered  into(6),  and  the  heir  or  devisee 
of  the  purchaser  will  not  be  entitled  to  the  money  agreed 
to  be  paid  for  the  lands,  or  to  have  any  other  estate  bought 
for  him(c).  For  although  the  purchaser  himself,  if  alive, 
might  elect  to  take  the  estate  with  the  bad  title(J),  yet 
where  he  is  dead  the  Court  cannot  speculate  upon  what 
he  would  or  would  not  have  done ;  but,  in  these  cases, 
the  inquiry  must  be,  whether  at  his  death  a  contract 
existed,  by  which  he  was  bound,  and  which  he  would 
be  compelled  to  perform.  That  alone  can  give  the  heir 
of  the  purchaser  a  right  to  call  for  the  personal  estate  to 
be  applied,  or  to  the  personal  representative  of  the  vendor, 
a  right  to  call  upon  his  heir.  The  question  must  be  the 
same,  whether  a  purchase  or  a  sale  is  insisted  on.  Was 
the  ancestor  himself  bound  ?  Was  there  such  an  aeree- 
ment  as  converts  the  real    estate    into  personal,  or  the 

(6)  Lacon  v.  Mertins,  3  Atk.  1  ;  Attorney-general  v.  Day,  1  Ves. 
218;  Buckmaster  V.  Hanop,  7  Ves.  jun.  341;  and  see  S  Ves.  jiin. 
274;  Rose  I'.  Cunynghame,  11  Ves.  jun.  560;  Collier  v.  Jenkins,  1 
Yo.  295. 

(c)  Green  v.  Smith,  1  Atk.  573  ;  Broome  v.  Monck,  10  Ves.  jun. 
597 ;   Savage  v.  Carrol,  1  Ball  &  Beatty,  265.      Vide  supra. 

{d)  Western  v.  Russell,  3  Ves.  &  Bea.  187. 

(*189) 


232  °^  '^'f^'^  CONSEQUENCES  OF 

personal  estate  into  real  ?(e)(I).  On  this  ground  it  has 
(*)been  decided,  that  where  a  man  had  a  right  of  pre- 
emption of  an  estate  under  a  will,  and  did  not  accept  the 
offer  in  his  life-time,  or  denote  any  intention  by  his  will 
to  do  so,  there  was  no  subsisting  contract,  by  virtue  of 
which  the  right  passed  to  the  real  representative,  so  as 
to  enable  him  to  call  upon  the  personal  estate  to  pay  for 
the  estate,  as  if  it  had  been  contracted  ioY(f).  So  where 
upon  a  parol  treaty,  the  purchaser  filed  his  bill  for  a 
specific  performance  of  it,  and  the  vendor  submitting  to 
perform  it,  a  decree  was  made,  that  the  purchaser  should 
pay  the  money  into  the  bank  by  a  given  day,  or  the  bill 
should  be  dismissed  ;  and  the  purchaser  paid  the  money 
according  to  the  decree :  in  a  question  between  his  heir 
and  devisee  it  was  determined,  that  the  estate  did  not 
pass  by  a  general  devise  in  his  will,  which  was  made 
prior  to  the  payment  of  the  money(^).  It  will  be  ob- 
served, that  in  this  case,  neither  of  the  parties  was  bound 
at  the  time  the  bill  was  filed  ;  and  if  the  purchaser  had 
not  paid  the  money,  his  bill  would  have  been  dismissed, 
and,  in  that  event,  no  contract  would  ever  have  existed. 
It  was  therefore  clear,  that  the  inception  of  the  contract 
was  upon  payment  of  the  money,  and  the  will,  therefore, 

(c)  Per  Sir  Wm.  Grant,  7  Ves.  jun.  344,  345. 
(/)   Earl  of  Radnor  v.  Shafto,  11  Ves.  jun.  448. 
(g-)  Gaskarth  V.  Lord  Lowther,  12  Ves.  jun.  107. 


1 


(I)  Vide  supra,  p.  129.  Note,  in  Potter  v.  Potter,  1  Ves.  438,  a  bill 
was  filed  to  compel  execution  of  the  parol  agreement  in  the  testator's 
life-time ;  his  agent  gave  a  note  for  payment  of  part  of  the  purchase 
money,  and  let  the  estate  as  he  pleased.  Possession  of  the  estate  must, 
therefore,  have  been  delivered  to  him.  And  the  Master  of  the  Rolls 
expressly  said,  that  the  agreement  was  so  far  carried  into  execution, 
even  before  the  will,  as  to  supply  the  want  of  writing.  This  case, 
therefore,  like  the  others,  only  proves,  that  a  binding  contract  in  the 
testator's  life-time  will  be  enforced. 

(*190) 


THE  CONTRA,CT.  ^$3 

having  been  made  before  the  contract,  could  not  affect 
the  estate. 

But  if  an  estate  directed  to  be  bought,  but  not  actually 
contracted  for,  is  not,  or  cannot  be  bought,  yet  the  money 
must  be  laid  out  in  other  lands,  for  the  benefit  of  the 
(*)devisee(A).  And  where  a  testator  intends  that  the  de- 
visee of  the  contracted  estate  shall  have  another  estate  of 
equal  value,  in  case  a  good  title  cannot  be  made  to  the 
one  contracted  for,  an  express  declaration  to  that  effect 
should  be  inserted  in  the  will. 

By  this  time  we  must  have  observed,  that  the  foregoing 
rules,  as  to  the  conversion  of  the  estate,  apply  to  those 
cases  only  where  a  court  of  equity  will  decree  a  specific 
performance  :  for  if  equity  will  not  interfere,  and  the 
vendee  be  left  to  his  remedy  at  law,  the  rules  of  law^,  and 
not  those  of  equity,  must  then  prevail,  and  consequently 
neither  the  vendor  nor  his  heir  would  be  considered  as 
a  trustee  for  the  purchaser,  but  would  only  be  subject  to 
an  action  for  breach  of  contract. 

SECTION  II. 
Of  Specific  Performance. 


The  preceding  observations  lead  us  to  inquire,  in  what 
cases  a  court  of  equity  will  decree  a  specific  performance  ; 
which,  for  the  purposes  of  this  work,  may  be  comprised 
under  two  heads.  First,  with  respect  to  the  vendor : 
Secondly,  with  respect  to  the  agreement  itself. 


I.  First,  then,  if  a  man,  seised   in  fee-simple,  or  pur 

(h)  Whittaker  r.  Whittaker,  4  Bro.  C.  C.  31  ;  and  see  2  Atk.  369  ; 
Broome  v.  Monck,  10  Yes.  jun.  597.      Vide  supra. 

VOL.  1.  30  (*191) 


234  ^^  THE  CONSEQUENCES  OF 

autre  vie(i),  contract  for  the  sale  of  his  estate,  and  die 
before  the  conveyance  is  executed,  his  heir  at  law  will 
be  decreed  to  perform  the  agreement  in  specie,  although  he 
covenanted  for  himself  only,  and  not  for  his  heirs(/c)(125). 
(*)It  was  a  point  of  great  controversy,  whether  the 
7  Anne,  c.  19,  enabled  an  infant  heir  at  law  to  convey  in 
performance  of  a  contract  made  by  his  ancestor.  It  is  now 
sufficient  to  refer  to  the  cases(/),  for  that  act  was  repealed 
by  the  6  Geo.  4,  c.  74 ;  but  even  the  latter  act  was  held 
not  to  embrace  constructive  trusts(m).  The  law  now 
depends  upon  the  1  W.  4,  c.  60,  which  enables  con- 
veyginces  to  be  made  by  committees  of  trustees  and  by 
lunatics,  although  not  found  so  by  inquisition,  and  by 
infant  trustees ;  and(n)  it  provides  that  every  person, 
being  in  other  respects  within  the  meaning  of  the  act, 
shall  be,  and  be  deemed  to  be,  a  trustee  within  the 
act,  notwithstanding  he  may  have  some  beneficial  estate 
or  interest  in  the  same  subject,  or  may  have  some  duty  as 
trustee  to  perform.  And  it  expressly  enacts(o),  that 
where  any  land,  shall  have  been  contracted  to  be  sold, 
and  the  vendor,  or  any  of  the  vendors,  shall  have  died, 
either  having  received  the  purchase-money  for  the  same,, 
or  some  part  thereof,  or  not  having  received  any  part 
thereof,  and  a  specific  performance  of  such  contract,  either 

(i)  Stevens  v.  Baily,  2  Freem.  1^9,  cited  ;  Nels.  Cha.  Rep.  106, 
reported ;  see  Anon.  2  Freem.  155. 

(k)   Gell  1).  Vermedum^  2  Freem.  199.. 

(/)  See  Ex  parte  Vernon,  2  P.  Wms.  549  ;  Sikes  v.  Lister,^  5  Vin> 
Abr.  641,  pi.  28;  Goodwin  v.  Lister,  3  P.  Wms.  3S7  ;  S.  C.  MS.; 
Hawkins  v.  Obeen,  2  Ves.  659  ;  Fearne's  Posthima,  236  ;  Jerdon  v. 
Forster,  1  Sand,  on  Uses,  283,  cited,  3d  edit.  Ex  parte  Janaway,  7 
Price,  679  ;  Smith  v.  Hibbard,  2  Dick.  730  ;  Onehy  v.  Price,  Fearne's 
Post.  239. 

(«t)  Dew  V.  Clarke,  4  Russ.  611.     King  v.  Turner,  2  Sim.  550. 

(n)  Sec.  16. 

(o)  Sec.  16. 

(125)  See  Glaze  v.  Dratjton,  1  Des.  109. 
(*192) 


THE  CONTRACT.  235 

wholly  or  as  far  as  the  same  remains  to  be  executed,  or  as 
far  as  the  same  by  reason  of  the  infancy  can  be  executed, 
shall  have  been  decreed  by  the  Court  of  Chancery(I),  in 
the  life-time  of  such  vendor,  or  after  his  decease,  and 
where  one  person  shall  have  purchased  in  the  name  of 
(*)another,  but  the  nominal  purchaser  shall  on  the  face  of 
the  conveyance  appear  to  be  the  real  purchaser,  and  there 
shall  be  no  declaration  of  trust  from  him,  and  a  decree 
of  the  Court,  either  before  or  after  the  death  of  such 
nominal  purchaser,  shall  have  declared  him  to  be  a  trustee 
for  the  real  purchaser,  then  in  every  such  case  the  heir  of 
such  vendor,  or  of  such  nominal  purchaser  or  his  heir, 
in  whom  the  premises  shall  be  vested,  shall  be  a  trustee 
for  the  purchaser  within  the  act. 

The  act  then  provides  (;?),  that  where  any  land  shall 
have  been  contracted  to  be  sold,  and  the  vendor  or  any 
of  the  vendors  shall  have  died,  having  devised  the  same 
in  settlement,  so  as  to  l)e  vested  in  any  person  for  life  or 
other  limited  interest,  with  any  remainder,  limitation  or 
gift,  and  which  may  not  be  vested,  or  may  be  vested  in 
some  person  from  whom  a  conveyance  of  the  same  cannot 
be  obtained,  or  by  way  of  executory  devise,  and  a  specific 
performance  of  such  contract,  either  wholly  or  so  far  as 
the  same  remained  to  be  executed,  shall  have  been  decreed 
by  the  Court,  it  shall  be  lawful  for  the  Court  to  direct 
such  tenant  for  life,  or  other  person  having  a  limited 
interest,  or  the  first  executory  devisee  thereof,  to  convey 
the  fee-simple  or  other  the  whole  estate  contracted  to  be 
sold  to  the  purchaser,  or  in  such  manner  as  the  Court 
shall  think  proper.  The  act  is  then((/)  extended  to  other 
cases  of  constructive    trusts,  but    is    not  to  extend  to 

(>)   Sec.  17. 
(«/)  Sec.  18. 

(I)  The  powers  are  extended  to  the  Court  of  Exchequer,  &c.  &c. 
Sec.  26.  31. 

(*in3) 


Qog  OF  THE  CONSEQUENCES  OF 

a  vendor,   except  in  any  case  before  expressly  provided 

for. 

An  agreement  by  a  man  seised  in  tail  is,  of  course, 
binding  on  himself,  but  it  cannot  be  enforced  against  the 
issue  in  tail,  if  the  entail  was  not  effectually  barred(r), 
(*)although  the  ancestor  covenanted  for  that  purpose(5), 
and  received  part,  or  even  the  whole  of  the  purchase- 
money,  and  a  decree  was  made  against  him,  and  he  died  in 
contempt,  and  in  prison,  for  not  obeying  the  decree(^)  (I)  : 
the  ground  of  which  determinations  is,  that  the  issue  in 
tail  claim  per  formam  doni,  from  the  creator  or  author  of 
the  estate  tail ;  and  therefore,  though  in  the  power  of 
tenant  in  tail  by  a  particular  conveyance,  that  not  being 
done,  the  Court  cannot  take  away  the  right  they  derive, 
not  from  the  tenant  in  tail,  but  from  the  author  of  the 
estate  tail(w). 

A  distinction  has,  however,  been  taken,  where  the  an- 
cestor is  only  equitable  tenant  in  tail  ;  and  the  Court  will 
in  that  case,  it  is  said,  relieve  against  the  issue(i'),  because 
equitable  estates  tail  are  mere  creatures  of  the  Court,  and 
not  within  the  statute  de  donis ;  and  there  certainly  seems 
ground  to  contend  that  the  Court  would  compel  a  specific 
performance  against  equitable  issue  in  tail,  where  a  decree 
has  been  made  in  the  ancestor's  life-time.     But  as  late 

(r)  See  3  &  4  W.  4,  c.  74,  which  abolished  fines  and  recoveries, 
j)ost.  ch.  7. 

(s)  Cavendish  v.  Worsley,  Hob.  203  ;  Ross  v.  Ross,  1  Cha.  Ca. 
171  ;  Sale  v.  Freeland,  2  Ventr.  350  ;  Jenkyns  v.  Keymes,  1  Lev. 
237 ;   which  have  overruled  the  dictum  in  Hill  v.  Carr,  1  Cha.  Ca.  294. 

(/)  Powell  V.  Powell,  Prec.  Cha.  278  ;  "Weal  v.  Lower,  2  Vern.  306, 
cited  ;  Sangon  v.  Williams,  Gilb.  Eq.  Rep.  104,  cited  ;  and  see  1  Ves. 
224. 

(«)   See  2  Ves.  634. 

(v)  Norcliff  V.  Warsley,  1  Cha.  Ca.  234  ;  Sayle  v.  Freeland,  2 
Ventr.  350  ;  and  see  1  Pow.  Contr.   126. 

(I)  But  now  by  1  W.  4,  c.  36,  s.  15,  Rule  15,  the  Court  may  itself 
execute  the  decree  against  the  tenant  in  tail  in  custody  for  contempt. 

f*]94) 


THE  CONTRACT. 


237 


authorities(t(^)  had  settled  that  an  equitable  estate  tail  in 
freeholds  could  not  before  the  3  &  4  W.  4,  c.  74,  be 
(*)barred  by  a  mere  deed,  but  only  by  a  fine  or  recovery,  it 
seems  that  equity  could  not  consider  such  issue  to  be 
bound  by  a  mere  agreement  entered  into  by  their  an- 
cestor. 

The  same  observations  seemed  to  apply  to  legal  and 
equitable  estates  tail  in  copyholds,  for  a  legal  entail 
could  only  before  the  late  act  have  been  barred  ac- 
cording to  the  custom  of  the  manor  of  which  the  copy- 
hold estate  was  holden ;  and  perhaps  the  better  opinion 
was,  that  the  same  steps  must  have  been  taken  to  bar  an 
equitable  estate  tail  in  copyholds,  as  must  have  been 
pursued  in  the  case  of  a  legal  entail.  Lord  Hardwicke, 
however,  appears  to  have  thought(a;)  that  a  mere  sur- 
render was  in  every  case  sufficient  to  bar  an  equitable 
estate  tail  in  copyholds  ;  but  the  contrary  opinion  was 
entertained  by  the  Profession,  and  appeared  to  be  autho- 
rized by  a  case  cited  in  several  books  from  the  papers  of 
the  late  Mr.  PowelI(?/),  in  which  it  was  held,  that  a 
covenant  by  a  tenant  in  tail  in  equity  of  a  copyhold,  in 
his  marriage  settlement,  to  surrender  his  copyholds  to 
uses  in  strict  settlement,  was  not  of  itself  sufficient  to  dock 
the  equitable  entail  ;  for  if  such  an  entail  be  created,  a 
recovery  in  the  court  baron  is  necessary  to  dock  it ;  it 
being  a  rule,  that  the  same  steps  must  be  taken  to  bar  an 
equitable  estate  in  tail,  as  would  be  requisite  to  bar  it,  were 

(w)  Legate  v.  Sewell,  I  P.  Wms.  91  ;  Harvey  v.  Parker,  10  Vin. 
Abr.  266,  pi.  6,  affirmed  in  Dum.  Proc.  ;  Kirkham  v.  Smith,  Ambl. 
318;  Radford  v.  Wilson,  3  Atk.  815  ;  Boteler  r.  Allington,  1  Bro.  C. 
C.  72  ;  Burnaby  v.  Griffin,  3  Ves.  jun.  266  ;  and  see  Fletcher  v.  Toi- 
let, 5  Ves.  jun.    13. 

{x)  Radford  v.  Wilson,  3  Atk.  315;  and  see  the  judgment  of  Lord 
Chancellor  Apsley,  in  Grayme  v.  Grayme,  1  Watk.  Cop.  180  ;  and 
see  Pow.  Contr.  126.     See  Pullen  v.  Lord  Middleton,  9  Mod.  483. 

{y)  Hale's  case,  Ch.  Hth  Dec.  1764;  and  see  Roe  v.  IjOwc,  1 
Henry  Blackst.  446. 

(*195) 


238  ^^  ^^^  CONSEQUENCES  OF 

it  a  legal  estate  tail(z),(l).  Indeed  the  power  of  tenants 
(*)in  tail,  to  bind  their  issue,  ought  to  be  the  same,  whether 
the  estate  be  freehold  or  copyhold,  and  whether  the  entail 
be  legal  or  equitable  ;  the  analogy  preserved  between 
legal  and  equitable  estates  tail,  and  between  limitations 
in  freehold  and  copyhold  estates,  should  be  adhered  to  in 
this  instance. 

But  now,  by  the  3  &  4  W.  4,  c.  74,  a  surrender  is  made 
a  sufficient  bar  of  even  a  legal  estate  tail,  and  equitable 
tenants  in  tail  may  bar  the  entail  either  by  surrender  or 
by  deed,  accompanied  by  the  solemnities  required  by  the 
act(«).  But  in  each  case  the  provisions  of  the  act 
must  be  complied  with,  or  the  issue  will  not  be  bouiid. 

And  it  is  expressly  enacted,  that  no  disposition  by  a 
tenant  in  tail  resting  only  in  contract,  either  express  or 
implied  or  otherwise,  and  whether  supported  by  a  valu- 
able consideration  or  not,  shall  be  of  any  force(6). 


Where  by  the  custom  of  a  manor,  and  it  is  the  custom 
of  most  manors,  a  tenant  is  complete  master  of  his  estate, 
independently  of  his  wife,  and  can  by  his  own  act  alone 
bar  her  free  bench  ;  an  agreement  by  him  for  sale  of  his 
estate  will  be  enforced  against  the  wife,  if  he  die  before  it 
is  carried  into  execution (c). 

But  an  agreement  for  sale  of  a  freehold  estate  could  not 
before    the    late  act    have  been    carried    into  execution 

(z)  And  see  1  Walk.  Copyh.  181  ;   1  Preston  on  Convey.  155. 

(a)   Sec.  60-54. 

(6)  Sec.  40. 

(c)  Hinton  V.  Hinton,  2  Ves.  631,  638;  Ambl.  277;  Brown  v. 
Raindle,  8  Ves.  jun.  256,  which  overruled  Musgrave  v.  Dashvvood,  2 
Vern.  45,  63. 

(I)  Note  ;  this  appears  to  be  an  extract  from  Mr.  Booth's  opinion  on 
this  case.  The  case  itself  appears  to  have  been  decided  on  the  ground 
that  the  remainder-man  claiming  in  equity  under  the  covenant  for  the 
settlement  was  a  mere  volunteer. 

(*196) 


THE  CONTRACT. 


239 


against  a  widow  entitled  to  dower.  The  distinction  was 
founded  upon  this  ground  ;  that  a  husband  had  it  in  his 
power,  during  his  life,  to  sell  his  copyhold  estates,  and 
thereby  bar  his  wife's  expectancy ;  but  if  a  wife's  right 
to  dower  once  attached  on  a  freehold  estate,  no  act  of  the 
husband's  alone  can  divest  it.  By  the  late  act(J),  how- 
ever, (*)a  wife's  dower  is  put  altogether  into  the  hus- 
band's power,  and  it  is  specially  provided,  that  no  widow 
shall  be  entitled  to  dower  out  of  any  land  which  shall  have 
been  absolutely  disposed  of  by  her  husband  in  his  life- 
time, and  that  all  partial  interests,  and  all  charges  created 
by  any  disposition  of  a  husband,  and  all  contracts  to  which 
his  land  shall  be  subject,  shall  be  valid  as  against  the 
right  of  his  widow  to  dower. 

Equity  will  enforce  an  agreement  by  a  joint  tenant  for 
sale  of  his  share  against  the  survivor,  if  the  articles  amount 
to  an  equitable  severance  of  the  jointure(€)  :  and  a  cove- 
nant to  sell,  though  it  does  not  sever  the  joint-tenancy  at 
law,  will  in  equity(f). 

An  agreement  by  a  feme  covert  for  sale  of  her  estate, 
cannot  be  enforced  either  at  law  or  in  equity(^)(126),  un- 
less the  estate  be  settled  to  her  separate  use,  so  as  to  enable 

((?)   3  &  4'W.  4,  c.  105,  s.  4,  5. 

(e)    Musgrave  r.  Dashwood,  2  Vern.  45,  63.     See  2  Ves.  634. 
(/)   See  3  Yes.  jun.  257  ;  Fiewen  v.  Relfe,  2  Bro.  C.  C.  220. 
(g)   Emery  r.  Wase,  5  Ves.  jun.  846. 

(126)  See  Livingston  v.  Livingston,  2  Johns.  Ch.  Rep.  537.  A 
feme  coveit  may  mortgage  her  real  estate  for  her  husband's  debts.  He- 
'viaresl  v.  Wrjnkoop,  3  Johns.  Ch.  Rep.  129.  As  to  the  power  of  a 
feme  covert  to  sell  or  incumber  her  separate  estate,  see  Euing  v.  Smith, 
3  Des.  417,  429  ;  where  the  English  decisions  on  this  subject,  from 
1723  to  1808,  are  reviewed.  A  majority  of  the  court  considered  the 
question  as  res  integra,  and  that  the  decisions  of  the  English  chancery 
had  extended  the  power  of  married  women  over  their  separate  estates 
to  a  greater  length  than  they  were  willing  to  go.  See  also,  as  to  this 
question,  J\Iethodist  Episcopal  Church  v.  Jaques,  3  Johns.  Ch.  Rep. 
77,  86.     See  Dibble  v.  Hulton,  1  Day,  221. 

(*197) 


240  ^^  THE  CONSEQUENCES  OF 

her  to  dispose  of  it  as  if  she  were  sole(127)  ;  nor  will  an 
agreement  by  her  husband  bind  her(/i).  Of  the  incapacity 
of  a  married  woman,  or  her  husband,  to  bind  her  real 
estate,  unless  [formerly]  by  a  fine  or  recovery,  there  is  a 
striking  instance  in  the  year  books  in  the  reign  of  Edward 
the  fourth(2).  A  woman  cestui  que  use  and  her  husband 
joined  in  the  sale  of  her  estate  ;  the  wife  received  the 
money,  and  she  and  her  husband  begged  her  feoffee  to 
convey  the  estate  to  the  purchaser,  which  he  accordingly 
did.  The  husband  died,  and  then  the  wife  filed  a  bill 
against  the  feoffee  for  a  breach  of  trust.  The  cause  was 
(*)heard  in  the  Exchequer  Chamber,  before  the  Chancel- 
lor and  the  judges  of  both  benches,  who  held,  that  the  sale 
was  in  fact  the  sale  of  the  husband  ;  that  the  receipt  of 
the  money  by  the  wife  was  immaterial,  and  the  sale  was 
void ;  that  the  trustee  was  answerable  for  the  breach  of 
trust ;  and  as  the  purchaser  knew  he  was  buying  a  marri- 
ed woman's  estate,  that  the  wife  might  recover  the  estate 
from  him. 

If,  however,  a  husband  agree  to  convey  his  wife's 
estate,  he  will,  according  to  some  cases,  be  compelled  to 
perform  the  agreement  in  specie(k)  ;  because  it  has  been 

(h)  See  Daniel  v.  Adams,  Ambl.  495  ;  1  Eq.  Ca.  Abr.  62,  pi.  2,  side 
note,  which  correct  the  dictum  in  Baker  v.  Child,  2  Vern.  61  ;  but  see 
Martin  v.  Mitchell,  3  Swanst.  413.  It  was  said  by  Murray,  Solicitor- 
General,  and  agreed  to  by  Lord  Hardwicke,  that  there  was  no  decree 
in  Baker  r.  Child,  in  Reg.  Lib.,  but  it  was  referred  to  arbitration. 

(i)   7  E.  IV.  14,  b. 

{k)   Hall  V.  Hardy,  3  P.  Wms.  187  ;  Barrington  v.  Home,  2  Eq.  Ca. ' 
Abr.  17,  pi.  7  ;  Morris  v.  Stephenson,  7  Ves.  jun.  474.     See  Wheeler 
V.  Newton,  Prec.  Cha.  16  ;  Haddon's  case,  Toth.  205  ;  and  see  Griffin 
V.  Taylor,  ib.  106,  edit.  1649. 

(127)  See  Jaques  v.  Methodist  Episcopal  Church,  on  appeal,  17 
Johns.  Rep.  648.  But  see  same  case,  1  Johns.  Ch.  Rep.  450.  and  3 
Johns.  Ch.  Rep.  77.  Bradish  v.  Gibbs,  3  Johns.  Ch.  Rep.  623.  Be- 
thune  V.  Beresford,  1  Des.  174. 

(*198) 


THE  CONTRACT. 


241 

said,  it  is  to  be  presumed  that  the  husband,  where  he 
covenants  that  his  wife  shall  levy  a  fine,  has  first  gained 
her  consent  for  that  pur]josc(/)  ;  but  this  does  not  seem 
to  be  the  true  ground,  for  although  the  wife  swear  by  her 
answer  that  she  never  assented  to  the  agreement,  yet  the 
husband  will  not  be  let  ofr(wO.  The  principle  upon  which 
the  Court  proceeds,  seems  to  be  this,  that  if  a  person  un- 
dertakes that  another  shall  do  a  certain  act,  he  is  bound 
to  procure  him  to  perform  it ;  and,  therefore,  where  a 
father  covenanted  that  his  son,  who  was  then  under  age, 
should  convey  lands  to  a  purchaser,  he  was  decreed  to 
procure  the  son  to  convey  on  his  coming  of  age(?i),  (I). 

(*)There  have  been  instances  of  committing  the  hus- 
band to  the  Fleet,  until  the  wife  should  convey  the  est-ate  ; 
but  if  he  should  make  it  appear,  that  he  could  not  prevail 
on  his  wife  to  join,  it  seems  that  he  must  of  necessity  be 
discharged,  upon  placing  the  vendee  in  the  same  situation 
as  if  the  agreement  had  never  been  executed(o). 

In  a  late  casefp)  Lord  Eldon  seemed  to  be  of  opinion 
that  if  this  alarming  doctrine  were  perfectly  res  integra, 
he  should  hesitate  before  he  would  hold  the  husband 
bound  to  procure  the  wife  to  join.  His  Lordship  said, 
that  if  a  man  chooses  to  contract  for  the  estate  of  a  married 

(/)   Winter  r.  Devrenx,  3  P.  Wms.  190,  n.  (B). 

(»n)  Withers  v.  Pinchard,  7  Vcs.  jun.  475.  cited. 

{n)   Anon.  2  Cha.  Ca.  53. 

(o)  See  note  to  Hall  v.  Hardy,  3  P.  Wnis.  187  ;  Ortread  v.  Round, 
4  Yin.  Abr.  303,  pi.  4  ;  S  Vcs.  jun.  510  ;  and  Emery  v.  Wase,  6  Yes. 
jun.  846  ;  and  see  Sedgwick  r.  Hargrave,  2  Yes.  57. 

(p)  Emery  v.  Wase,  8  Yes.  jun.  505  ;  and  see  16  Yes.  jun.  367  ; 
Howell  V.  George,  1  Madd.  1. 

(T)  And  it  is  no  plea  to  an  action  at  law  for  breach  of  the  agrec- 
ment,  to  say,  that  the  third  person  had  nothing  to  do  with  it,  or  no  estate 
in  it,  for  the  defendant  hath  undertaken  to  procure  it,  and  must  at 
his  peril. — Staughton  v.  Hawley,  M.  1  W.  and  M.  Rot.  662,  B.  R.  judg- 
ment in  H.  after.     MS. 

VOL.    I.  31  (*199) 


242 


OF  THE  CONSEQUENCES  OF 


woman,  or  an  estate  subject  to  dower,  he  knows  the  pro- 
perty is  her's  altogether,  or  to  a  given  extent.  The  pur- 
chaser is  bound  to  regard  the  policy  of  the  law ;  and  what 
right  has  he  to  complain,  if  she  who,  according  to  law, 
cannot  part  with  her  property  but  by  her  own  free  will, 
takes  advantage  of  the  locus  pcenitentice  :  and  why  is  he 
not  to  take  his  chance  of  damages  against  the  husband  ? 
And  after  showing  the  absurdity  which  must  arise  by  ad- 
hering to  the  contrary  doctrine,  his  Lordship  added,  that 
there  was  difficulty  enough  to  make  him  pause,  before  he 
should  follow  the  two  last  authorities  ;  and  he  was  not 
sure,  whether  it  was  not  proper  to  have  the  judgment  of 
the  House  of  Lords,  to  determine  which  of  the  decisions 
on  this  point  ought  to  bind  us. 

And  it  now  seems  perfectly  clear,  that  this  jurisdiction 
is  to  be  very  sparingly  exercised(I),  and  that  equity  will 
(*)eagerly  seize  on  any  reasonable  ground  as  a  bar  to  the 
aid  of  the  Court(^).  Indeed  in  a  late  case(r)  in  the  Court 
of  Common  Pleas,  where  an  action  was  brought  on  a  cove- 
nant by  a  husband,  that  he  and  his  wife  would  levy  a  fine, 
and  he  could  not  procure  her  concurrence,  the  learned 
Chief  Justice  said,  that  the  covenant  upon  which  the 
action  was  brought  was  such  as  the  Court  of  Chancery 
would  not  now  enforce  ;  and  he  added,  that  nothing  could 
be  more  absurd  than  to  allow  a  married  woman  to  be 
compelled  to  levy  a  fine,  through  the  fear  of  her  hubsand 
being  sued  and  thrown  into  gaol,  when  the  general  prin- 
ciple of  the  law  is,  that  a  married  woman  shall  not  be 

(q)  See  Ortiead  v.  Round,  4  Vin.  Abr.  203,  pi.  4  ;  Emery  v.  Wase, 
ubi  sup.  ;  Daniel  v.  Adams,  Ambl.  495. 

(r)  Davies  v,  Jones,  1  New.  Rep.  267  ;  and  see  Maitin  v.  Mitchell, 
3  Swanst.  425. 

(I)  Upon  this  expression  Lord  Eldon  observes,  that  certainly  it  is 
very  satisfactory  to  be  informed,  that  it  is  and  it  is  not  to  be  done,  8 
Ves.  jun.  616. 

(*200) 


THE  CONTRACT. 


243 


compelled  to  levy  a  fine.  This  observation  of  Lord  Chief 
Justice  Mansfield  must  have  considerable  influence  on 
this  subject,  although,  as  we  have  seen,  it  is  not  settled 
that  equity  will,  in  every  case,  refuse  to  compel  the  hus- 
band to  procure  his  wife's  concurrence. 

An  agreement  by  a  lunatic  cannot  of  course  be  carried 
into  a  specific  execution ;  but  the  change  of  the  condition 
of  a  person  entering  into  an  agreement  by  becoming 
lunatic,  will  not  alter  the  right  of  the  parties ;  which  will 
be  the  same  as  before,  provided  they  can  come  at  the 
remedy.  As  if  the  legal  estate  is  vested  in  trustees,  a 
court  of  equity  will  decree  a  specific  performance  ;  and 
the  act  of  God  will  not  change  the  right  of  the  parties  ;  but 
where  the  legal  estate  was  vested  in  the  lunatic  himself, 
that  would  formerly  have  prevented  the  remedy  in  equity, 
and  left  it  at  law(5)  ;  unless  the  purchaser  was  satisfied 
with  the  enjoyment  of  the  estate  which  a  decree  would 
give  him,  and  chose  to  encounter  the  inconvenience  of 
leaving  the  legal  estate  outstanding  in  the  lunatic,  in 
(*)vvhich  case  a  a  specific  performance  would  have  been  de- 
creed in  his  favor(^).  But  this  anomaly  is  now  removed 
by  the  1.  W.  4,  c.  6o(u),  which  provides,  that  where  any 
person  shall  have  contracted  to  sell  an  estate,  and  shall 
afterwards  become  lunatic,  and  a  specific  performance  of 
such  contract,  either  wholly  or  so  far  as  the  same  shall 
remain  to  be  performed,  shall  have  been  decreed  either 
before  or  after  such  lunacy,  it  shall  be  lawful  for  the  com- 
mittee, by  the  direction  of  the  Lord  Chancellor,  to  convey 
in  pursuance  of  such  decree,  and  the  purchase-money,  or 
so  much  as  remains  unpaid,  is  to  be  paid  to  the  com- 
mittee. 

If  trustees,  under  a  power  of  sale,  make  a  legal  con- 

(s)  Owen  V.  Davies,  1  Yes.  82. 
(/)  Hall  V.  Warren,  9  Vcs.  jun.  605. 
(u)  Sec.  7. 

(*201) 


244  ^^  '^^^  CONSEQUENCES  OF 

tract  for  sale  of  the  estate,  the  contract  binds  the  estate  ; 
and  though,  by  the  deaths  of  parties,  the  power  should 
be  extinguished,  yet  the  contract  must  be  executed  by 
those  who  have  got  an  interest  by  the  extinguishment  of 
the  power(.r). 

If  an  infant  enter  into  a  contract  for  the  sale  or  purchase 
of  an  estate,  he  cannot  enforce  it  in  equity,  for  the  remedy 
is  not  mutual(?/). 


II.  Secondly,  We  are  to  consider  the  rules  by  which 
equity  is  guided  in  granting  a  specific  performance,  with 
reference  to  the  agreement  itself. 

We  shall,  in  the  subsequent  chapters  of  this  treatise, 
have  occasion  to  consider  rather  at  large  in  what  cases 
equity  will  or  will  not  enforce  a  specific  performance  of 
an  agreement  for  sale  of  an  estate  ;  and  it  will  in  this 
(*)place,  therefore,  be  sufficient  to  state  the  general  rules  by 
which  equity  is  guided  in  compelling  the  specific  per- 
formance of  agreements. 

The  original  foundation  of  these  decrees  was  simply 
this,  that  damages  at  law  would  not  give  the  party  the 
compensation  to  which  he  was  entitled  ;  that  is,  would  not 
put  him  in  a  situation  as  beneficial  to  him  as  if  the  agree- 
ment were  specifically  performed.  On  this  ground  the 
Court,  in  a  variety  of  cases,  has  refused  to  interfere, 
where  from  the  nature  of  the  case  the  damages  must  ne- 
cessarily be  commensurate  to  the  injury  sustained(2:)(  128), 

(x)  Moitlock  V.  Buller,  10  Ves.  jun.  292  ;  and  see  Shannon  v.  Brad- 
street,  1  Scho.  &  Lef.  52. 

(ij)  Flight  V.  Bolland,  4  Russ.  298. 

(s)  Errington  v.  Annesley,  2  Bro.  C.  Ca.  841  ;  Fhnt  v.  Brandon,  8 
Ves.  jun.  363  ;  Mitf.  PI.  109. 

(128)  See  Hepburn  v.  Dimlop,  1  Wheat.  197.  Hepburn  v.  Jluld,  5 
Cranch,  202.  Hutch  v.  Cobb,  4  Johns.  Ch.  Rep.  659.  Kempshall  v. 
Stone,  5  Johns.  Ch.  Rep.  193.  Lotig  v.  Colston,  1  Hen.  &  Munf.  110. 
Perkins  v.  Wright,  3  Har.  &  M'Hen.  326.  Cotson  v.  Thompson,  2 
Wheat.  336. 

,(*202) 


THE  CONTRACT. 


245 


as,  for  instance,  in  agreements  for  the  purchase  of  stock,  it 
being  the  same  thing  to  the  party,  where  or  from  whom 
the  stock  is  purchased,  provided  he  receives  the  money 
that  will  purcliase  it.  But  the  sale  of  an  annuity  payable 
out  of  dividends  of  a  particular  stock(rt),  or  of  the  right  to 
a  dividend  upon  a  bankrupt's  estate(6),  or  even  a  contract 
for  stock  where  the  object  is  to  obtain  delivery  of  cer- 
tificates which  confer  the  legal  title  to  it(c),  may  be 
enforced  in  equity.  These  cases  show  what  were  the 
grounds  on  which  courts  of  equity  first  interfered,  but 
they  have  constantly  held  that  the  party  who  comes  into 
equity  for  a  specific  performance,  must  come  with  perfect 
propriety  of  conduct,  otherwise  they  will  leave  him  to  his 
remedy  at  law(^). 

The  decreeing  a  specific  performance  is  a  matter  of 
discretion,  but  it  is  not  an  arbitrary,  capricious  discre- 
tion ;  it  must  be  regulated  upon  grounds  that  will  make  it 
(*)judicial(e)(129).  And  undoubtedly  every  agreement,  of 
which  there  should  be  a  specific  execution,  ought  to  be  in 
writing,  certain,  and  fair  in  ail  its  parts,  and  for  adequate 
consideration(/)(130). 

(rt)  AVithy  V.  Cottle,  1  Sim.  &  Stu.  174,  affirmed  upon  the  hearing; 
1  Turn.  78. 

(6)   Adderley  v.  Dixon,  1  Sim.  &  Stu.  607. 

(c)  Doloret  V.  Rothschild,  1  Sim.  &  Stu.  590. 

(d)  Harnett  v.  Yielding,  2  Scho.  &  Lef.  653.  [misprinted  in  the 
book]  per  Lord  Redesdale  ;  and  see  Cadman  v.  Horner,  18  Ves.  jun. 
10. 

(e)  Per  Lord  Eldon,  see  7  Ves.  jun.  35  ;  and  see  1  Atk.  183  ;  4 
Burr.  2539. 

(/)  Per  Lord  Hardwicke,  see  1  Ves.  279 ;  and  see  3  Atk.  386  ; 
Ellard  V.  Lord  Llandlatl',  1  Ball  &  Beatty,  241 ;  Martin  v.  Mitchell,  3 
Swanst.  413  ;   Stanleys.  Robinson,  1  Russ.  &  Myl.~527. 


(129)  Si.  Johnv.  Benedict,  6  Johns.  Ch.  Rep.  111.  Seijmour  v.  De- 
lancij,  6  Johns.  Ch.  Rep.  222.  Perkins  \.  JVrighf,  3  Har.  &  M'Hcn. 
326.     Orr  v.  Hodgson,  4  Wheat.  465. 

(130)  See  Colson  v.  Thompson,  2  Wheat.  336.  Clitherall  v.  Ogihie,  1 

(*203) 


246  ^^  ^^^  CONSEQUENCES  OF 

Equity  will  not  decree  a  specific  performance  of  an 
agreement  made  in  a  state  of  intoxication,  although  the 
party  was  not  drawn  in  to  drink  by  the  plaintiff;  nor  will 
it  decree  the  agreement  to  be  delivered  up  ;  but  will  leave 
the  parties  to  their  remedy  at  law(^)(131). 

If  it  be  stipulated  in  a  contract,  that  immediate  posses- 
sion shall  be  given  to  the  purchaser,  which  is  done,  but  in 
consequence  of  disputes  as  to  the  title,  the  seller  after- 
wards turn  the  purchaser  out  of  possession,  he  abandons 
his  right  to  a  specific  performance(/t). 

A  court  of  equity  frequently  decrees  a  specific  per- 
formance where  the  action  at  law  has  been  lost  by  the 
default  of  the  very  party  seeking  the  specific  performance, 
if  it  be  notwithstanding  conscientious  that  that  agreement 
should  be  performed,  as  in  cases  where  the  terms  of  the 
agreement  have  not  been  strictly  performed  on  the  part 
of  the  person  seeking  specific  performance  ;  and  to  sus- 
tain an  action  at  law,  performance  must  be  averred  ac- 
cording to  the  very  terms  of  the  contract.  Nothing  but 
specific  execution  of  the  contract,  so  far  as  it  can  be  exe- 
cuted, will  do  justice  in  such  a  case.(z). 

Although  damages  may  be  recovered  at  law,  yet  equity 
(*)is  not  therefore  obliged  to  decree  a  specific  performance  ; 

(g)  Cragg  V.  Holme,  18  Ves.  jun.  14,  cited.  See  Say  v.  Barvvick, 
1  Ves.  &  Bea.  95. 

(/i)  KnatchbuU  v.  Grueber,  3  Mer.  124. 

(i)  Davis  V.  Hone,  2  Scho.  &  Lef.  341,748.  See  Lennon  i\  Nap- 
per,  ibid.  684. 

Des.  250,  257.  Caldwell  v.  JMtjers,  Hardin,  553.  Carberry  v.  Tan- 
nehill,  1  Har.  &  Johns,  224.  Seijmour  v.  Delancij,  6  Johns.  Ch.  Rep. 
222. 

(131)  See  contra,  Wigglesworthw.  Steers,  1  Hen.  &  Munf.  70.  As 
to  the  validity  of  contracts  made  by  persons  in  a  state  of  intoxication, 
see  Rutherford  v.  Ruff,  4  Des.  350.  Wade  v.  Colvert,  2  Rep.  Con. 
Ct.  27.  Campbell  v.  Ketcham,  1  Bibb.  406.  Taylor  v.  Patrick,  1 
Bibb.  168.     While  v.  Cox,  3  Hayw.  82. 

C*204) 


THE  CONTRACT. 


247 


but  the  Court  will  judge  on  the  whole  circumstances  of 
the  case,  whether  it  be  such  an  agreement  as  ought  to  be 
carried  into  effect ;  for  a  jury,  upon  inquiry,  may  find  ve- 
ry small  damages,  and  then  it  would  be  very  hard  to  carry 
such  an  agreement  into  execution  in  equity,  when  it  would 
be  greatly  to  the  prejudice  of  the  party  against  whom  it 
should  be  decreed  to  be  executed (A:)(  132). 

In  a  case  where  a  man  was  entitled  to  a  small  estate 
under  his  father's  will,  given  on  condition  that  if  he  should 
sell  it  in  twenty-five  years,  half  the  purchase-money 
should  go  to  his  brother  ;  he  agreed,  in  writing,  to  sell  it, 
and  afterwards  refused  to  carry  the  sale  into  execution, 
pretending  to  have  been  intoxicated  at  the  time.  A  bill 
was  brought  against  him  to  compel  a  specific  performance  ; 
and  Lord  Hardwicke  held,  that  without  the  other  circum- 
stance, the  hardship  alone  of  losing  half  the  purchase- 
money,  if  carried  into  execution,  was  sufficient  to  deter- 
mine the  discretion  of  the  Court  not  to  interfere,  but  leave 
them  to  law(/)(133). 

Nor  will  equity  interpose,  if  the  party  who  is  called 
upon  to  do  the  act  is  not  lawfully  competent  to  do  it ;  for 
that,  amongst  other  inconveniences,  would  expose  him  to 
a  new  action  for  damages(«i)(134). 

(A.)  Per  Lord  Hardwicke,  MS.  See  Pope  v.  Harris,  Lofft,  791,  cit- 
ed ;  White's  case,  3  Swanst.  108,  n. 

(/)  Fain  v.  Brown,  2  Ves.  307,  cited  ;  Costigan  v.  Hastier,  2  Scho. 
&  Lef.  160.    See  2  Ball  &  Beatty,  283  ;  Howell  v.  George,  1  Madd.  1. 

(hi)  Harnett  v.  Yielding,  2  Scho.  &  Lef.  554  ;  Ellard  v.  Lord  Llan- 
daff,  1  Ball  &  Beatty,  241.     See  }yost,  p.  210. 

(132)  See  Perkins  v.  Wright,  2  Har.  &  M'Hen.  326.  ClUherall  v. 
Ogilvie,  1  Des.  263.      Edwards  v.  Handleij,  Hardin,  602.     See  Camp- 

'^bell  V.  Spencer,  2  Binn.  129. 

(133)  See  Rugge  v.  Ellis,  1  Dcs.  160,  163. 

(134)  A  court  of  Equity  will  not  enforce  an  agreement  entered  into  in 
fraud  of,  or  against  the  policy  of  the  law.  M'Dermed  v.  ArCaslland, 
Hardin,  18.      Hannay  v.  Ewe,  3  Cranch,  242.     It  scans,  that  the  alien- 


I 


2^g  OF  THE  CONSEQUENCES  OF 

But  although  a  covenant  ought  not  to  be  performed 
literEilly,  jet  equity  will  execute  it  according  to  a  con- 
scientious modification  of  it,  to  do  justice  as  far  as  circum- 
stances will  permit (?2)(  135). 

(*)Suppressio  veri,  as  well  as  suggestio  falsi,  is  a  ground 
to  rescind  an  agreement,  or  at  least  not  to  carry  it  into 
execution(o),  and  even  an  industrious  concealment,  dur- 
ing a  treaty,  of  the  necessary  repair  of  a  wall  to  protect 
the  estate  from  a  river,  which  was  a  considerable  out- 
going, has  been  deemed  a  sufficient  ground  to  withhold 
the  aid  of  equity  from  a  vendor^/?).  So  where  there  is 
a  mistake  between  the  parties  as  to  what  was  sold,  the 
Court  will  not  interfere  in  favor  of  either  party(^). 
Even  mere  surprise  on  third  persons  at  a  sale  by  auction, 
has  been  deemed  sufficient  to  prevent  the  Court  from 
assisting  a  purchaser,  as  where  the  known  agent  of  the  ^ 
seller  bid  for  the  estate  on  behalf  of  the  purchaser,  and  | 
other  persons  present  thinking  he  was  bidding  as  a -puffer 
on  the  part  of  the  vendor  were  deterred  from  bidding(r), 

(n)  Davis  v.  Hone,  2  Scho.  &  Lef.  348. 

(o)  See  Buxton  v.  Cooper,  3  Atk.  383 ;  S.  C.  MS.  ;  Howard  v. 
Hopkins,  2  Atk.  371  ;  Young  v.  Clerk,  Prec.  Cha.  138  ;  1  Trea.  Eq. 
ch.  ii.  s.  8 ;  1  Ball  &  Beatty,  241  ;  Lord  Clermont  v.  Tasburgh,  1  Jac. 
&  Walk.  112. 

ip)  Shirley  v.  Stratton,  1  Bro.  C.  C.  410.  See  Small  v.  Attwood, 
Younge's  Rep. 

(7)  See  1  Ves.  jun.  211  ;  6  Ves.  jun.  339  ;  13  Ves.  jun.  427  ;  Hig- 
ginson  r.  Clowes,  15  Ves.  jun.  156;  Clowes  v.  Higginson,  1  Ves.  & 
Bea.   524 ;   Harnett  v.  Yielding,  2  Scho.  &  Lef.  554. 

(r)  Twining  v.  Morris,  2  Bro.  C.  C.  326.  See  6  Ves.  jun.  338  ; 
10  Ves.  jun.  306,  313,  398  ;  and  see  Willan  v.  Willan,  16  Ves.  jun. 
72  ;   Magrave  v.  Archbold,  1  Dow,  107. 

age  of  the  vendee  may  afford  a  sufficient  reason  for  refusing  a  specific' 
performance  of  a  contract  for  the  sale  of  lands,  as  against  him.     Hep- 
burn V.  Dunlop,  1  Wheat.  179. 

(135)  See  Championv.  Brown,  6  Johns.  Ch.  Rep.  398.  Ramsay  v. 
Brailsford,  2  Des.  683. 

(*205) 


THE  CONTRACT. 


249 


So,  in  a  recent  case,  where  a  purchaser,  previously  to 
the  sale  by  auction,  told  the  vendor  that  he  would  have 
nothing  to  do  with  the  estate,  but  afterwards  went  to  the 
sale,  ivhere  he  was  considered  by  the  company  as  a  puffer(\) 
and  bid  8,000/.  for  the  estate,  which  was  knocked  down 
to  him  at  that  sum  from  the  misapprehension  of  the  per- 
son appointed  to  bid  for  the  vendor,  who  ought  to  have 
(*)bid  9,000/.,  and  the  mistake  was  instantly  explained, 
a  specific  performance  was  refused(5)(l 36). 


(*)  Mason  r.  Aimitage,  13  Ves.  jun.  25.  See  Hill  r.  Buckley,  17 
Ves.  jun.  394. 

(I)  This  is  stated  in  the  judgment,  but  qu.  whether  it  appeared  in 
evidence. 

(136)  No  concealment  or  misrepresentation  can  have  the  effect  of 
barring  the  rights  of  the  parties  to  a  contract,  unless  it  be  collusive  or 
fraudulent,  or  the  negligence  be  so  gross  as  to  amount  to  proof  of  fraud. 
Sluarl  V.  Luddington,  1  Rand.  403.  See  further  as  to  concealment 
and  misrepresentation  ;  JWAllister  v.  Barnj,  2  Hayw.  290.  Thigpen 
V.  Balfour,  1  Car.  Law  Rep.  112.  Kennedy  v.  Johnson,  2  Bibb,  12. 
In  Botoman  v.  Bales,  2  Bibb,  47,  52,  it  was  held  by  a  majority  of  the 
court,  that  where  the  vendee  of  land,  having  discovered  salt  water, 
industriously  and  artfully  concealed  the  fiict  from  the  vendor,  equity 
would  relieve  against  the  contract  of  sale.  See  Jlrmstrong  v.  Hickman, 
6  Munf  287. 

In  the  case  of  Rothschild  v.  Brookman,  5  Blight.  165,  where  a  hold- 
er of  foreign  stock  buys  and  sells  with  the  advice  of  his  broker,  and 
through  him,  but  the  broker  in  fact  never  purchases  any  stock,  but 
being  a  holder  of  such  stock  himself  the  transactions  are  all  nominal, 
and  no  transfers  are  made.  After  a  loss  on  these  transactions  and  a 
settlement  of  account,  upon  which  the  principal,  who  was  ignorant  that 
the  transactions  were  nominal,  pays  a  sum  of  money  to  the  agent,  upon 
a  bill  filed  four  years  after  the  settlement,  the  transactions  set  aside,  and 
the  money  paid  ordered  to  be  refunded,  and  the  decree  of  the  court  of 
Chancery  affirmed  with  costs. 

"  In  sound  policy  no  person  ought,  in  any  case,  to  be  employed  secretly 
to  bid  for  the  owner  against  the  bona  fide  bidder,  at  a  public  auction. 
It  is  fraud  in  law  on  the  very  face  of  the  transaction,  and  the  owner's 
interference  and   right  to  bid,  in  order  to  be  admissible,  ought  to   be  in- 

voL.  I.  32  (*'206) 


250  <^^  'T^E  CONSEQUENCES  OF 

If  an  agent,  employed  to  sell  an  estate,  sells  it  in  a 
manner  not  authorized  by  the  authority  given  to  him,  a 
specific  performance  will  not  be  decreed  against  the  prin- 
cipal although  the  estate  be  sold  for  a  greater  price  than 
he  required  for  it(^).  At  least,  it  is  clearly  settled,  that  if 
an  agent  is  empowered  to  sell  an  estate  by  public  auction, 
a  sale  by  private  contract  is  not  within  his  authority.  For 
although  the  owner  may  have  fixed  the  price,  yet  the 
estate  might  have  sold  for  more  at  a  public  auction.  But 
if  an  agent  is  directed  to  sell  an  estate  by  private  contract, 
and  he  dispose  of  it  by  public  auction  for  a  larger  sum 
than  the  principal  required,  it  still  seems  open  to  contend 
that  the  purchaser  may  enforce  a  specific  performance  of 
the  contract,  unless  some  particular  reason  should  occur 
to  induce  the  Court  to  refuse  its  aid. 

In  Mortlock  v.  Buller(?«),  Lord  Eldon  said  he  should 
hesitate  long  before  he  should  state  as  a  clear  proposition, 
that  where  the  title  to  a  specific  performance  is  founded 
in  a  gross  breach  of  trust  by  an  agent  to  his  principal,  a 
court  of  equity  would  assist  the  plaintiff  in  the  purpose 
of  availing  himself  of  that  breach  of  trust ;  and  whether 
the  principle  would  not  authorize  the  Court  to  leave  him  Jl 
to  law,  and  not  to  let  him  come  for  a  remedy  beyond  that. 
There  .were,  his  Lordship  added,  dicta  enough  well  to 
authorize  that. 

And  where  trustees  for  sale  of  an  estate  enter  into 
a  contract,  which  would  be  deemed  a  breach   of  trust, 

(<)  Daniel  v.  Adams,  Ainbl.  495  ;  etvide  a  dictmn  by  Lord  Eldon  in  j 

Coles  V.  Trecothick,  1  Smith's  Rep.  247. 

(m)  10  Ves.  jun.  292;  and  see  the  close  of  the  judgment,  Oid  v. 
Noel,  5  Madd.  438. 

timated  on  the  conditions  of  sale  ;  and  such  a  doctrine  is  understood  to 
have  been  recently  declared  at  Westminster  Hall."     2  K.  Com.  536. 

In  Mills  V.  Goodsell,  5  Conn.  R.  475,  the  point  decided  was,  that  an 
officer  who  sells  property  on  execution,  cannot  become  a  purchaser 
without  the  consent  of  both  debtor  and  creditor. 


THE  CONTRACT. 


251 


(*)equity  will  not  only  refuse  to  interfere  in  favor  of  the 
purchaser,  but  will  even  at  the  suit  of  the  cestuis  que  trust 
restrain  the  trustees  from  executing  the  contract,  and  the 
purchaser  will  be  left  to  his  remedy  at  law(a;). 

If  a  person,  entitled  in  default  of  execution  of  a  power 
of  sale,  contract  to  sell  the  estate,  not  as  owner,  but  mere- 
ly as  the  agent  of  the  trustees,  and  the  contract  could  not, 
under  the  circumstances,  have  been  carried  into  execution 
against  the  trustees,  it  will  not  be  enforced  against  the 
agent,  although  he  himself  become  entitled  to  the  estate 
before  the  decree(?/),(I). 

Where  a  person  takes  upon  himself  to  contract  for  the 
sale  of  an  estate,  and  is  not  absolute  owner  of  it,  nor  has 
it  in  his  power  by  the  ordinary  course  of  law  or  equity  to 
make  himself  so ;  though  the  owner  offer  to  make  the 
seller  a  title,  yet  equity  will  not  force  the  buyer  to  take  it, 
for  every  seller  ought  to  be  a  bona  fide  contractor(2)  :  and 
it  would  lead  to  infinite  mischief  if  one  man  were  permitted 
to  speculate  upon  the  sale  of  another's  estate.  Besides,  the 
(*)remedy  is  not  mutual,  which  perhaps  is  of  itself  a  sufifi- 

{x)  Mortlock  V.  Buller,  10  Ves.  jun.  292.  See  Hill  v.  Buckley,  17 
Ves.  jun.  394  ;  Bridger  v.  Rice,  1  Jac.  &  Walk.  74. 

(y)   Mortlock  v.  Buller,  10  Ves.  jun.  292. 

{z)  Tendring  v,  London,  2  Eq.  Ca.  Abr.  680,  pi.  9.  See  10  Ves. 
jun.  315  ;  and  I  Jac.  &  Walk.  421  ;  and  query,  whether  there  is  any 
case,  in  which  a  man,  knowing  himself  not  to  have  any  title,  has  been 
allowed  to  enforce  the  contract  by  procuring  a  title  before  the  report, 

(I)  From  the  papers  in  this  cause,  it  seems  that  Mr.  Buller  treated 
with  Mr.  Mortlock  as  the  owner  of  the  estate,  and  this  appeared  from 
the  receipt  for  the  purchase-money,  where  the  estate  was  called,  "  the 
property  of  John  Buller,  Esq."  and  Mr.  Mortlock  had  not  any  know- 
ledge whatever  that  the  estate  was  in  settlement.  See  Lawrenson  v. 
Butler,  1  Sch.  &  Lef.  13. 

Since  this  note  was  written,  an  action  brought  by  Mr.  Mortlock 
against  Mr.  Buller,  for  breach  of  contract,  came  on  for  trial,  when  it 
was  compromised  on  terms  very  advantageous  to  the  plaintiff.  See  2 
Ball  &  Beatty,  60  ;  and  see  2  Dow,  618. 

(*207)    (*208) 


252  OF  THE  CONSEQUHNCES  OF 

cient  objection  in  a  case  of  this  nature.  In  Armiger  v. 
Clarke(«)>  a  tenant  for  life  contracted  to  sell  the  inherit- 
ance :  after  his  death,  his  son,  who  was  entitled  to  the 
estate  in  remainder,  and  was  not  bound  by  his  father's 
covenant,  brought  a  bill  for  a  specific  performance  against 
the  purchaser,  and  it  was  dismissed  chiefly  upon  this  prin- 
ciple, that  the  remedy  was  not  mutual(137).  And  in  Noel 
V.  Hoy(6),  it  was  said,  that  if  A.  sells  B.^s  estate,  although 
B.  is  willing  to  confirm  the  contract,  A.  cannot  enforce  it : 
there  is  no  mutuality.  So  an  infant  cannot  specifically 
enforce  a  contract  by  himself  for  sale,  because  there  is  no 
mutuality(c).  But  in  Williams  v,  Carter(<]f),  the  estate 
was  sold,  and  it  was  afterwards  discovered  that  it 
was  bound  by  marriage  articles,  which  it  was  decided  in 
a  suit  instituted  for  the  purpose,  authorized  the  introduc- 
tion of  a  power  of  sale  in  the  trustees,  and  thereupon 
a  bill  was  filed  by  them  and  the  seller  for  a  specific  per- 
formance. The  Vice-Chancellor  overruled  the  objection, 
that  there  was  no  mutuality  in  the  agreement,  and  decreed 
a  specific  performance. 

And  on  the  other  hand,  where  a  bona  fide  vendor  has 
not  a  title  to  the  estate,  the  Court  will  not,  in  favor  of  the 
purchaser,  decree  an  impossibility,  but  will  leave  the  pur- 
chaser to  his  remedy  at  law  upon  the  articles(e) ;  and, 
although  he  must  necessarily  obtain  a  verdict,  if  he  have 
recourse  to  law,  yet  he  would  in  most  cases  obtain  nominal 
damages  only(X),  for  a  purchaser,  as  a  general  rule,  is 

(a)   Bunb.  Ill;   see  post,  ch.  6  ;   Hamilton  v.  Grant,  3  Dow,  33. 
(6)  V.  C.  23  Feb.  1820,  MS. 

(c)  Flight  V.  Bolland,  4  Russ.  298. 

(d)  MS.  V.  C.  1821. 

(e)  Crop  V.  Norton,  2  Atk.  74 ;  9  Mod.  233  ;  Cornwall  v.  Williams, 
Colles,  P.  C.  390 ;   Benet  College  v.  Carey,  3  Bro.  C.  C.  390. 

(/)  Fleaureau  v.  Thornhill,  2  Blackst.  1078  :  and  see  3  Bos.  & 
Pull.  167.     See  Brig's  case.  Palm.  364.      Vide  post. 

(137)  See  Parkhurst  v.  Van  Cortlandt,  1  Johns.  Ch.  Rep.  273,282. 
Benedict  v.  Lynch,  1  Johns.  Ch.  Rep.  370. 


I 


THE  CONTRACT,  253 

(*)not  entitled  to  any  compensation  for  the  fancied  good- 
ness of  his  bargain,  which  he  may  suppose  he  has  ]ost(138). 

But  where  the  purchaser  is  willing  to  take  the  title, 
such  as  it  is,  it  is  apprehended  that  he  may  do  so.  In 
a  latecase(^)(139),  Lord  Redesdale  said,  that  the  plaintiff 
in  equity  must  show  that  in  seeking  the  performance,  he 
does  not  call  upon  the  other  party  to  do  an  act  which  he 
is  not  lawfully  competent  to  do  ;  for,  if  he  does,  a  conse- 
quence is  produced  that  quite  passes  by  the  object  of  the 
Court  in  exercising  the  jurisdiction,  which  is  to  do  more 
complete  justice.  If  a  party  is  compelled  to  do  an  act 
which  he  is  not  lawfully  authorized  to  do,  he  is  exposed  to  a 
new  action  for  damages,  at  the  suit  of  the  person  injured  by 
such  act ;  and,  therefore,  if  a  bill  is  filed  for  a  specific  per- 
formance of  an  agreement  made  by  a  man  who  appears 
to  have  a  bad  title,  he  is  not  compellable  to  execute  it,  un- 
less the  party  seeking  performance  is  willing  to  accept 
such  a  title  as  he  can  give,  and  that  only  in  case  where  an 
injury  would  be  sustained  by  the  party  plaintiff,  in  case  he 
were  not  to  get  such  an  execution  of  the  agreement  as  the 
defendant  can  give.  His  Lordship  took  the  reason  to  be 
this,  among  others,  not  only  that  it  is  laying  the  founda- 
tion of  an  action  at  law,  in  which  damages  may  be  recov- 
ered against  the  party,  but  also  that  it  is  by  possibility  in- 
juring a  third  person,  by  creating  a  ^itle  with  which  he 
may  have  to  contend. 

It  is,  however,  the  received  opinion,  that  the  purchaser 
may  elect  to  take  the  title,  such  as  it  is,  although  no  in- 
jury would  be  sustained  by  him  in  case  the  agreement 

(g-)  Harnett  r.  Yielding,  2  Scho.  &  Lef.  649.     See;jo5^ 

(138)  See  Hepburn  v.  Dunlop,  1  Wheat.  179.  Hepburn  v.  Auld,  5 
Cranch,  262.  Butler  v.  O'Hear,  1  Des.  382.  Fishery.  Kay,  2  Bibb, 
434.  Johnson  v.  Hobson,  1  Lit.  314.  Kelletj  v.  Bradford,  3  Bibb,  317. 
As  to  damages  in  case  of  eviction  by  title  paramount,  see  Coopev^s  Justin- 
ian, 607  to  620,  where  the  American  cases  on  that  subject  are  collected. 

(139)  See  Roachv.  Rutherford,  4  Des.  126. 

(*209) 


254  ^^  '^"^  CONSEQUENCES  OF 

were  not  executed,  nor  does  the  rule  seem  to  lead  to  the 
difficulty  which  has  been  apprehended ;  for,  in  such  a 
case,  the  covenants  must,  of  course,  be  so  framed,  as  not 
to  leave  the  seller  exposed  to  an  action  on  account  of  the 
(*)flaw  in  the  title ;  but  where  the  conveyance  would  be 
merely  void,  and  might  embarrass  persons  claiming  under 
the  same  title  as  the  seller,  equity  seems  to  refuse  its  aid 
on  substantial  grounds(A). 

But  where  a  tenant  for  life  with  a  power  of  sale,  first 
settling  other  estates  of  equal  or  betteTvMue,  sold  the 
estate  under  an  apprehension  that  he  had  power  to  con- 
vey the  fee,  the  Court  refused  to  compel  him  to  settle 
another  estate,  in  order  to  enable  him  to  complete  his 
contract(/). 

To  enable  the  Court  to  decree  a  specific  performance 
against  a  vendor,  it  is  not,  however,  necessary  that  he 
should  have  the  legal  estate ;  for  if  he  has  an  equitable 
title,  a  performance  in  specie  will  be  decreed(A:),  and  he 
must  obtain  the  concurrence  of  the  persons  seised  of  the 
legal  estate. 

Although,  as  we  have  seen,  a  vendor  cannot  demand 
the  aid  of  equity,  unless  he  is  a  bona  fide  contractor,  yet 
the  circumstance  that  the  purchaser  is  a  nominal  con- 
tractor, and  purchases  in  trust  for  another  person,  is  im- 
material ;  for  it  happens,  in  a  vast  proportion  of  cases, 
that  the  contract  is  entered  into  in  the  name  of  a  trus- 
tee(/),  and  the  mere  fact  of  a  quarrel  having  taken  place 
between  the  vendor  and  the  real  purchaser,  totally  uncon- 
nected with  the  subject  of  the  contract(m),  or  even  a  bare 

ill)  See  Ellard  v.  Lord  LlandafF,  1  Ball  &  Beatty,  244.  See 
O'Rourke  v.  Peicival,  2  Ball  &  Beatty,  56. 

{{)  Howell  V.  George,  1  Madd.  1. 

{h)  Crop  V.  Norton,  2  Atk.  74.  See  Costigan  v.  Hastier,  2  Scho. 
&  Lef.  160. 

(Z)  Hall  V.  Warren,  9  Ves.  jun.  605. 

(m)  S.  C. 

(*210) 


THE  CONTRACT.  255 

refusal  by  the  vendor  to  deal  with  the  real  contractor(n), 
is  not  a  sufficient  ground  to  refuse  a  performance  in  specie 
of  the  agreement. 

But  if  a  person  apply  to  purchase  an  estate,  and  the 
(*)vendor  expressly  refuse  to  treat  with  him,  unless  the 
money  is  paid  down,  which  he  is  unable  to  do,  but  pro- 
cures some  other  person  to  purchase  the  estate  on  his 
account,  it  seems  clear,  that  at  least  the  time  appointed 
for  payment  of  the  money  will  be  deemed  of  the  very 
essence  of  the  contract(o).  So  if  a  person  apply  to 
purchase  an  estate  on  behalf  of  A.,  for  whom  the  vendor 
has  a  great  value  or  affection,  and  the  vendor  is  induced 
to  take  less  for  the  estate  than  he  otherwise  would  have 
done;  or  even,  perhaps,  without  this  circumstance,  the 
agreement  cannot  be  enforced  against  the  vendor,  if  it  be 
made  on  behalf  of  any  other  person  than  A.  ;  but  if  A, 
will  patronize  the  sale,  execution  of  the  agreement  must 
be  compelled,  although  he  may  sell  the  estate  the  next 
day  to  the  fraudulent  purchaser(/?). 

The  case  of  Scott  v.  Langstaffe(^),  was  decided  on 
the  same  principle.  A  purchaser  of  a  house  adjoining 
to  a  house  occupied  by  the  vendor,  agreed  with  the  ven- 
dor, though  it  was  not  made  part  of  the  written  contract, 
that  he  would  not  lease  the  house  to  any  person  not 
agreeable  to  him.  Langstaffe  applied  for  a  lease,  and 
stated  that  he  knew  the  vendor  intimately,  and  that  there 

(n)  Lord  Irnham  v.  Child,  1  Bro.  C.  C.  92. 

(o)  Popham  v.  Eyre,  Lofft,  786.  Mr.  Brown's  note  of  this  case 
evinces  the  danger  of  relying  on  short  notes  of  cases ;  see  1  Bro.  C. 
C.  95,  n.  See  O'Herlihy  v.  Hedges,  1  Schoales  &  Lefroy's  Rep. 
123;  but  note,  that  case  was  between  landlord  and  tenant;  and  see 
Feathcrstonhaugh  r.  Fenwick,  17  Yes.  jun.  298. 

(p)  Philips  V.  Duke  of  Buckingham,  1  Vern.  227.  In  Mr,  Raith- 
by's  edit,  it  is  said  that  a  specific  performance  was  decreed.  The  prin- 
ciple, however,  is  now  well  established. 

iq)  Lofft,  797,  798,  cited  ;  and  see  Bonnett  i'.  Sadler,  14  Ves.  jun. 
527  ;  Fellowes  v.  Lord  Gwydyr,  1  Sim.  63. 

(*211) 


256  O^  'TH^  CONSEQUENCES  OF 

would  be  no  objection  to  grant  him  a  lease.  The  vendor, 
however,  disapproved  of  Langstaffe,  and,  so  far  from 
knowing  him  intimately,  had  only  seen  him  at  a  tavern. 
Lord  Camden  said,  this  was  the  case  of  Philips  v.  the 
(*)Duke  of  Buckingham.  Nobody,  who  had  read  that 
case,  could  easily  forget  it.  And  his  Lordship  set  aside 
the  agreement  which  Langstaffe  had  obtained,  with  costs. 

A  similar  case  is  mentioned  in  Hawkins's  life  of  John- 
son, which  was  also  decided  on  the  authority  of  Philips's 
case.  Peele  the  bookseller  had  a  house  near  Garrick's 
at  Hampton.  Peele  had  often  said,  that  as  he  knew  it 
would  be  an  accommodation  to  Garrick,  he  had  given 
directions  that  at  his  decease  he  should  have  the  refusal 
of  it.  On  Peele's  death,  a  man  in  the  neighborhood 
applied  to  his  executors,  pretending  that  he  had  a  com- 
mission from  a  friend  or  relation  of  Peele's,  who  lived  in 
the  country,  to  buy  the  house  at  any  price,  and  he  accord- 
ingly obtained  a  conveyance  of  it  to  a  person  nominated 
by  him  under  a  secret  trust  for  himself.  Garrick  filed  a 
bill  against  him,  and  the  purchase  was  decreed  fraudu- 
lent, and  set  aside  with  costs. 

But  although  a  seller  falsely  assume  the  character  of 
an  agent  to  another,  when  he  is  himself  the  real  seller, 
and  the  purchaser  be  deceived  by  the  representation, 
yet  it  has  been  decided  that  if  the  purchaser  cannot 
prove  damage,  or  that  the  misrepresentation  induced  him 
to  enter  into  the  contract,  a  specific  performance  will  not 
be  refused (r). 

An  agreement  for  the  sale  of  an  annuity  for, three  lives, 
to  be  named  by  the  purchaser,  and  to  commence  imme- 
diately, will  be  decreed,  although  the  lives  have  not 
been  named,  if  the  delay  has  been  occasioned  by  the 
seller(s). 

(r)  Fellowes  v.  Lord  Gwydyr,  1  Sim.  63  ;   1  Russ.  &  Myl.  83. 
(s)   Pritchard  r.  Ovey,  1  Jac.  &  Walk.  396. 

(*212) 


THE  CONTRACT.  oe-y 

In  some  cases(/),  it  has  been  holden,  that  where  no 
(*)action  at  law  will  lie  to  recover  damages,  equity  will 
not  execute  ^the  agreement  in  specie ;  for  equity  will  never 
make  that  a  good  agreement,  which  is  not  so  bylaw; 
but,  in  other  cases(M),  the  contrary  has  been  holden,  and 
relief  been  given  accordingly. 

Perhaps  the  following  distinctions  are  authorized  by 
the  cases,  nnd  will  reconcile  them. 

First,  That  although  the  agreement  be  void  at  law,  yet 
a  specific  performance  will  be  decreed,  if  there  is  a  clear 
ground  for  the  interference  of  equity,  according  to  the 
general  rules  of  the  Court ;  and,  however  unqualifiedly  the 
contrary  rule  may  have  been  laid  down,  there  is  not  (that 

1  am  aware  of)  any  case  clearly  entitled  to  the  aid  of  the 
Court,  to  which  this  rule  has  been  successfully  opposed 
as  a  bar  to  the  relief. 

Thus  aljond  from  a  woman  to  her  intended  husband 
has  been  enforced  in  equity,  although  void  at  law  by  the 
intermarriage ;  and  an  agreement  for  sale  of  an  estate 
has  been  decreed  against  an  heir  at  law,  although  his 
ancestor  died  before  the  time  appointed  to  convey  the 
estate,  and  therefore  no  action  would  lie  against  him.  In 
the  first  of  these  cases  the  inqiropriety  of  the  security 
was  deemed  immaterial ;  for  it  was  sufficient  that  the 
bond  was  a  written  evidence  of  the  agreement  of  the 
parties,  and  the  agreement  being  upon  a  valuable  consi- 
deration, ought  to  be  executed  in  equity.  The  decision 
in  the  other  case  depended   upon  the  doctrine,  that  the 

(<)  The  Marquis  of  Normanby  v.  Duke  of  Devonshire,  2  Freem. 
216;  Dr.  Betesworth  r.  Dean  and  Chapter  of  St.  Paul's,  Sel.  Cha.  Ca. 
66  ;  and  see  2  Eq.  Ca.  Abr.  15,  23,  notis ;  and  Fonbl.  n.  (c)  to  1  Trea. 
Eq.  138,  and  n.  {h)  to  p.  204,  ibid. 

(«)  Winged  v.  Lefebury,  2  Eq.  Ca.  Abr.  32,  pi.  43  ;  Acton  r.  Pierce, 

2  Vern.  480  ;  Cannel  v.  Buckle,  2  P.  Wms.  243  ;  Norton  r.  Mascail, 
2  Vern.  24  ;  and  Hall  v.  Hardy,  3  P.  Wms.  187.  See  East  India 
Company  v.  Donald,  9  Ves.  jun.  275  ;   1  Smith's  Rep.  213. 

VOL.   I.  33  (*213) 


258  OF  THE  CONSEQUENCES  OF 

articles  were  a  lien  upon  the  land ;  the  contract  being  a 
purchase  in  equity.     But, 

(*)Secondly,  Equity  cannot  contradict  or  overturn  the 
grounds  or  principles  of  law(a:)(140)  ;  and  therefore,  in 
many  cases,  it  must  be  considered  whether  damages  could 
be  recovered  at  law,  and  the  Court  will  be  guided  by  the 
result(2/). 

Thus  agreements  for  sale  of  an  estate  have  (as  we  have 
already  seen)  been  decreed  on  mere  letters  which  have 
passed  between  the  parties,  but  not  unless  all  the  terms 
of  the  agreement  were  therein  specified  ;  and  even  this 
was  going  a  great  way.  In  the  first  case,  therefore,  in 
which  even  a  trifling  omission  appeared  in  the  letters,  it 
was  natural  to  pause  before  the  performance  of  the  agree- 
ment was  decreed,  and  to  ascertain  whether  damages 
could  be  recovered  at  law  :  for  the  statute  of  frauds  and 
perjuries  must  receive  the  same  construction  in  a  court  of 

(x)  See  2  P.  Wms.  753  ;  Earl  of  Bath  v.  Sherwin,  10  Mod.  1. 
(y)  See  Hollis  v.  Edwards,  1  Vern.  159. 

(140)   See  Hollingsworth  v.  Fry,  4  Dall.  345,  347. 

Tha  tan  opinion  formerly  prevailed,  that  on  a  suit  for  the  specific 
execution  of  a  parol  agreement  for  the  sale  of  land,  the  defendant  must 
either  confess  or  deny  the  agreement,  and,  that  in  the  former  case,  the 
plea  of  the  statute  of  frauds  would  be  unavailing,  is  not  less  true  than 
strange.  But  it  is  now  the  settled  rule  of  the  court,  that  although  the 
defendant  should  answer  and  admit  the  agreement  as  stated  in  the  bill, 
he  may  nevertheless  protect  himself  against  a  performance,  by  pleading 
the  statute.  And  it  was  held  in  Thompson  v.  Tod,  1  Pet.  C.  C.  R. 
380,  that  part  performance  of  the  contract  can  have  no  other  effect  than 
to  let  the  plaintiff  in  to  prove  the  contract  aliunde,  where  it  is  not  con- 
fessed ;  but  in  the  case  then  before  the  court  no  such  proof  was  given  ; 
the  contract  being  neither  admitted  nor  proved  :  held,  that  the  plaintiff 
was  not  entitled  to  the  relief  which  he  specifically  prayed  for.  Wash- 
ington, J.  added,  that  although  if  should  be  admitted,  that  under  all  the 
circumstances  of  that  case,  that  the  payment  of  a  part  of  the  purchase 
money  will  amount  to  a  part  peformance,  still  it  should  appear,  beyond 
all  reasonable  doubt,  that  the  payment  was  understood  by  the  parties  to 
have  been  so  made  and  intended. 

(*214) 


THE  CONTRACT.  259 

equity  as  in  a  court  of  law,  unless  in  the  case  of  fraud, 
&c.  where  equity  interposes  and  relieves  against  the 
abuse,  or  allays  the  rigor  of  the  law. 

The  case  of  the  Marquis  of  Normanby  v.  the  Duke  of 
Devonshire,  was,  I  believe,  the  first  in  which  this  point 
occurred  ;  and,  according  to  a  manuscript  note,  it  appears 
that  Lord  Somers  called  in  the  two  chief  justices  on  the 
point,  whether  the  party,  on  the  letters  which  had  passed, 
could  have  recovered  damages  at  law  ?  They  were  of 
opinion  that  he  could  not,  and  Lord  Somers  accordingly 
dismissed  the  bill. 

So  there  are  very  few  cases  in  which  a  court  of  equity 
can  decree  a  performance  of  an  agreement  upon  which 
there  can  be  no  action  at  law,  according  to  the  words  of 
the  articles,  and  the  events  that  have  hap])e7ied(z). 


A  proviso,  in  a  contract  for  sale,  that  if  either  party 
(*)break  the  agreement  he  shall  pay  a  sum  of  money  to 
the  other,  will  only  be  considered  in  the  nature  of  a  penal- 
ty(«)  ;  and  consequently  a  specific  performance  will  be 
decreed  just  as  if  no  such  proviso  had  been  inserted.  The 
defendant  will  not  be  allowed  to  forfeit  the  penalty,  and 
get  rid  of  the  agreement(6)(141). 

Where  an  action  is  brought  for  the  recovery  of  the 
penalty,  to  entitle  the  party  bringing  it  to  recover,  he 
ought  punctually,  exactly,  and  literally,  to  have  com- 
pleted  his  part(c).     And,  it  has  been  said,  that  if,   for 

{z)  Whitmel  v.  Fanel,  1  Ves.  256. 

{a)  Howard  v.  Hopkins,  2  Atk.  371.  See  2  Scho.  &  Lef.  684  ; 
and  Margrave  v.  Archbold,  1  Dow,  107  ;  Davies  v.  Penton,  6  Barn.  & 
Cress.  216  ;   9  Dowl.  &  R.  369,  S.  C. 

(6)  Hopson  V.  Trevor,  1  Str.  633  ;  2  P.  Wnis.  191 ;  Parks  v.  Wil- 
son, 10  Mod.  615. 

(c)  Duke  of  St.  Alban's  v.  Shore,  1  H.  Blackst.  270. 

(141)  See  Telfair  y.  Telfair,  2  Des.  271.  Telfair  v.  Telfair,  ut 
supra. 

(*216) 


2Q0  OF  THE  CONSEQUENCES  OF 

breach  of  an  agreement,  to  which  a  penalty  was  annexed, 
either  party  recover  damages  at  law  beyond  the  penalty, 
equity  will  relieve  against  the  verdict,  on  payment  of  the 
penalty  only(f/)  ;  but  this  is  not  well  founded,  for,  if  the 
party  have  two  remedies  at  law,  one  for  breach  of  con- 
tract upon  the  covenant,  or  agreement,  toties  quoties ; 
the  other  for  the  penalty  at  once(e),  there  appears  to  be 
no  pretence  for  equity  to  relieve  ;  although  where  large 
damages  have  been  recovered  at  law,  under  a  covenant 
which  it  was  unconscientious  strictly  to  enforce,  the  party 
may  be  relieved  in  equity,  upon  offering  to  perform  the 
covenant  according  to  conscience  :  but  even  this  seems, 
in  some  measure,  to  be  usurping  the  province  of  a  jury, 
and  the  equity  is  administered  with  great  caution(142). 

Where  the  parties  have  expressly  stipulated,  that  in  case 
of  a  breach  by  either,  he  shall  pay  a  sum  named  as  liqui- 
dated (*)damages,  the  whole  sum  may,  if  the  agreement 
be  broken,  be  recovered  at  law(7^(143). 

If  a  power  be  given  in  a  contract  to  a  purchaser  to  leave 
the  purchase-money  as  a  charge  upon  the  property  for  a 
given  period  at  interest,  and  it  be  stipulated  that  the 
purchaser  shall  be  deemed  a  tenant  to  the  seller  at  a  rent 
equal  to  the  interest,  and  the  seller  have  power  to  dis- 
train ;  though  the  agreement  be  acted  upon,  yet  the 
instrument  would  not  be  deemed  a  lease,  but  is  sub- 
stantially a  contract  for  purchase,  and  the  power  of  distress 
does  not  alter  the  nature  of  the  contract  between  the  par- 

((Z)  Shenton  v.  Jordan,  Biinb.  132  ;  but  the  reporter  adds  a  query, 
fur  this  seems  an  extraordinary  opinion. 

(e)   See  Harrison  v.  Wright,  13  East,  343. 

(/)   Reilly  v.  Jones,  1  Bing.  302  ;  8  Moo.  244,  S.  C. 

(142)  See  Skinner  v.  Dayton,  2  Johns.  Ch.  Rep.  526.  Graham  v. 
Bichham,  4  Dall.  149. 

(143)  See  Slosson  v.  Beadle,  7  Johns.  Rep.  72.  Hasbrouck  v. 
Tappen,  15  Johns.  Rep.  200. 

(*216) 


THE  CONTRACT.  261 

ties.     And  this  construction  would  be  applied  in  the  event 
of  the  bankruptcy  of  the  purchaser(^). 

SECTION  III. 

Of  the  Remedies  for  a  Breach  of  Contract. 


If  either  the  vendor  or  vendee  refuse  to  perform  the 
contract,  the  other  may  bring  an  action  for  breach  of 
contract,  or  file  a  bill  for  a  specific  performance(^) ; 
although  it  appears  to  have  been  formerly  thought  that 
as  a  vendor  only  wants  the  purchase-money,  his  remedy 
was  at  law(i). 

Where  one  party  fails  in  performing  the  contract,  the 
other,  if  he  means  to  rescind  the  contract,  should  give  a 
clear  notice  of  his  intention  (A;). 

If  a  bill  be  filed  for  a  specific  performance,  the  Court 
(*)will  enjoin  either  party  not  to  do  any  act  to  the  injury 
of  the  other.  Therefore,  if  the  purchaser  is  in  posses- 
sion, and  has  not  ])aid  the  money,  the  Court  will  grant  an 
injunction  against  his  cutting  timber(/)(144)  ;  so,  on  theoth- 

(g)  Hope  V,  Booth,  1  Barn.  &  Adolp.  498. 
{h)   Lewis  v.  Lord  Lechmere,  10  Mod.  503. 

(t)   See  Armiger  V.   Clark,  Bunb.   Ill;  Withy  v.   Cottle,   1  Sim.  & 
Stu.  174.     See  Kenney  v.  Wcnham,  6  Madd.  315. 
(t)   Reynolds  v.  Nelson,  6  Madd.  18. 
(/)   Crockford  v.  Alexander,  15  Ves.  jun.  138. 

(144)  An  injunction  to  stay  waste  will  not  be  granted  against  a  ven- 
dee, to  whom  land  has  been  sold  in  fee,  even  where  the  vendor  retains 
the  title  as  security  for  the  purchase  money  ;  unless  he  brings  his  suit  to 
enforce  the  lien,  alleging,  that  the  defendant  is  committing  waste  in  such  a 
manner  as  to  render  the  land  an  incompetent  security  ;  in  which  case,  an 

(*217) 


252  °^  '^^^  CONSEQUENCES  OF 

er  hand,  the  vendor  will  be  restrained  from  conveying  away 
the  legal  estate  in  the  property  ;  because  such  a  measure 
might  put  the  purchaser  to  the  expense  of  making  another 
party  to  the  suit(m)  ;  and,  a  fortiori,  he  will  be  restrained 
from  selling  the  estate  to  a  third  person(w).  But  in 
Spiller  V.  Spiller(o),  the  Lord  Chancellor  expressly  laid  it 
down,  that  upon  a  bill  filed  for  a  specific  performance,  he 
wished  it  to  be  understood,  that  the  Court  would  not  take 
from  a  seller  the  disposition  of  his  property.  So  injunc- 
tions may  be  granted  against  the  agents  of  the  parties. 
But  an  injunction  will  not  be  granted  against  a  person 
who  is  not  a  party  to  the  suit ;  and,  in  a  late  case,  in 
which,  upon  a  bill  filed  by  a  seller  for  a  specific  per- 
formance, and  an  injunction  against  the  purchaser's  pro- 
ceeding at  law  to  recover  the  deposit  from  the  seller's 
attorney,  to  whom  it  was  paid,  Sir  John  Leach,  V.  C. 
refused  the  motion,  with  costs,  because  the  attorney  was 
not  a  party  to  the  suit(p).  But  in  a  very  recent  case, 
the  same  Judge  granted  an  injunction  to  restrain  the 
purchaser  from  proceeding  in  an  action  against  the  auc- 
tioneer, although  he  (the  auctioneer)  was  not  a  party  to 
the  suit ;  the  seller  offering  to  bring  the  deposit  into 
Court. 

In  all  cases  where  a  bill  in  equity  is  filed  for  a  specific 

(m)  Echliff  V.  Baldwin,  1  Ves.  jun.  267. 

(»)   Curtis  V.  Marquis  of  Buckingham,  3  Ves.  &  Beam.  168. 

(o)   30  June  1819,  MS.     S.  C.  3  Swanst.  656. 

{p)   Brown  15.  Frost,  E.  T.  1818.  MS. 

injunction  to  stay  waste,  pending  the  suit,  may  be  awarded.  Scott  v. 
Wharton,  2  Hen.  &  Munf.  25.  An  injunction  will  lie  against  a  mort- 
gagor in  possession,  to  stay  waste  ;  although  no  suit  be  pending  for  fore- 
closure. Bvadij  V.  JValdron,  2  Johns.  Ch.  Rep.  148.  So,  an  injunc- 
tion will  lie  to  restrain  the  defendant  from  cutting  timber  and  commit- 
ting other  waste,  he  being  in  possession,  claiming  title  adversely,  a  suit 
being  pending,  at  law,  to  try  the  title.  Sliubrick  v.  Guerard,  2  Des. 
616.     See  contra,  Storm  v.  JVIa/in,  4  Johns.  Ch.  Rep.  21. 


THE  CONTRACT. 


263 


performance,  either  party  may  in  general,  if  he  please^ 
have  a  reference  as  to  the  title.  The  vendor  is  entitled  to 
(*)this  privilege  in  order  to  enable  him  to  make  out  a  title 
before  a  Master.  The  purchaser  is  allowed  this  right,  in 
order  that  he  may  have  the  title  assured  in  a  manner  he 
otherwise  could  not.  As  to  a  purchaser,  the  Court  never 
acts  upon  the  fact,  that  a  satisfactory  abstract  was  de- 
livered, unless  the  party  has  clearly  bound  himself  to 
accept  the  title  upon  the  abstract ;  but  though  the  ab- 
stract is  in  the  hands  of  the  party  who  says  he  cannot 
object  to  it,  yet  he  may  insist  upon  a  reference ;  because, 
by  the  production  of  papers,  which  can  be  enforced,  and 
by  the  examinations  and  inquiries  which  can  be  made  by 
virtue  of  the  decree,  the  title  may  be  examined  in  a  man- 
ner it  never  could  upon  a  mere  abstract(g')(145).  Either 
party  may,  however,  wave  this  right. 

Where  a  man  makes  a  purchase  of  an  estate,  to  which 
the  vendor  represents  that  he  has  a  good  title,  in  such  a 
case  the  purchaser  has  a  right  to  insist,  that  the  question 
whether  he  have  or  have  not  a  good  title  shall  be  sifted 
to  the  bottom  before  he  can  be  called  upon  to  adopt  either 
alternative,  and  before  the  vendor  can  be  let  off  from  his 
original  contract(r). 

Where  the  purchaser  files  the  bill,  and  insists  that  the 
vendor  cannot  make  good  a  title,  equity  can  only  dismiss 
the  bill  with  costs,  although  the  Court  will  compel  him  to 
make  out  the  title  if  he  have  the  ability(5).  But  the 
Court  has  power  in  a  suit  so  framed  to  decide  whether 
the  title  is  good  or  bad. 

If,  after  the  confirmation  of  a  report  in  favor  of  a  title, 

(g)  See  Lord  Eldon's  judgment  in  Jenkins  r.  Hiles,  6  Yes.jun.  653. 

(»•)  3  Mer.  137,  per  Lord  Eldon. 

(«)  Nicloson  V.  Wordsworth,  2  Swanst.  365. 

(145)   See  Beverley  v.  Laxcson's  heirs,  3  Munf.  317,  383.     JSrComb 

V.  IVrighl,  4  Johns.  Ch.  Rep.  659. 

(*218) 


264  ^^  '^^^  CONSEQUENCES  OF 

a  new  fact  appear,  by  which  the  title  is  affected,  the  title 
will  be  referred  back  to  the  Master(i).  In  a  case  where 
the  seller  of  a  leasehold  estate  produced  the. leasehold  title, 
(*)which  the  Master  thought  sufficient,  and  reported  ac- 
cordingly ;  but  the  Court  held,  that  the  lessor's  title  ought 
to  have  been  produced,  and  sent  it  back  to  the  Master  to 
review  his  report ;  the  seller  had  liberty  given  to  him  to 
produce  the  freehold  title.  And  it  was  considered  that  the 
purchaser  was  at  liberty  to  enter  into  objections  to  the 
leasehold  title,  which  were  not  taken  upon  the  former  dis- 
cussions before  the  Master(^/.).  And,  upon  the  objections 
being  afterwards  taken,  the  bill  was  dismissed(2').  The 
course  of  the  Court  is,  where  the  Master  has,  by  express- 
ing an  opinion  in  favor  of  the  title,  prevented  the  vendor 
from  showing,  that  if  his  opinion  had  been  otherwise, 
still  the  title  was  good,  to  send  it  back  to  the  Master  to 
review  his  report,  the  party  moving  to  pay  the  costs  of 
the  motion(y).  If  the  Master's  report  in  favor  of  the 
title  be  overruled,  yet  the  seller  may,  upon  an  early 
application,  obtain  a  reference  back,  in  order  to  show 
that  the  title  is  valid  upon  another  ground  not  before 
taken  (2). 

So  where  it  appears  at  the  hearing  upon  the  exceptions, 
that  the  seller  can  clear  up  the  objection,  the  Court  has 
sometimes  sent  the  title  back  to  the  Master  to  review  his 
report,  and  in  such  a  case  it  is  not  necessary,  as  it  was 
held  by  Lord  Eldon,  that  the  Master  should  have  liberty 
to  receive  further  evidence.  He  may  receive  such  evi- 
dence without   any  express    authority.     In  the   case   of 

(f)  Jeudwine  v.  Alcock,  1  Mad.  597. 

(«)   Fildes  V.  Hooker,  2  Mer.  424.     Andrew  v.  Andrew,  3  Sim.  390. 
(x)   S.  C.  V.  C.  3d  April  1818,  MS  ;  3  Madd.  193. 
(y)  Egerton  v.  Jones,  3  Sim.  392. 

(2)  Egerton  v.  Jones,  1  Russ.  &  Myl.  694.     Portman  v.  Mill,  ib. 
697. 
(*219) 


riir:  contract. 


265 


fc^sdyilc  V.  .Ste{)heiisoii(rt),  it  appeared  that  the  estate  was 
subject  to  a  rent-charge,  and  a  term  to  secure  it ;  and 
(*)the  purciiaser's  counsel,  before  the  Master,  required  the 
seller  to    produce    a    release  of"  it,  or  evidence  that  the 
jointress  would  release  ;  but  although  he  did  not  do  so, 
the  Master  reported,  that  the  seller  could  make  a  good 
title  upon  the  jointress  releasing.     To  this  report  excep- 
tions were  taken.     The  Vice-Chancellor    consulted    the 
Lord  Chancellor,  and  stated  their  opinion  to  be,  that  the 
report  was  wrong.     It   should   have  been,  that  the  seller 
could  not  make  a  good   title  unless  the  jointress  joined ; 
and  the  Vice-Chancellor  recommended  in  future,  the  form 
of  such  a  report  to  be,  that  the  seller  could  not  make 
a  good   title,  because  A.  is  a  jointress,  and  no  sufficient 
evidence  has  been  produced  to  show  that  she  will  release. 
The  Lord  Chancellor  and    the  Vice-Chancellor  agreed, 
that  if  a  title  upon  a  new  fact  can   be  made  between  the 
report  and   the  further  directions,  the  Court  will  enforce 
the  contract,  as  if  in  the  above  case  the  jointress  had  agreed 
to  join  when  the  cause  came  on  for  further  directions  :   la 
such   a  case  the   Court  would  expect  counsel  to  appear, 
and  consent  that  she  would  concur.     This  points  out  the 
necessity  in  such  cases  of  setting  down  the  cause  upon 
further  directions  at  the  same  time  with  the  exceptions. 
In  Esdaile   v.   Stephenson,  as  the  exceptions  only  were 
before   the  Court,  they  were  ordered  to  stand  over,  with 
liberty  to  set  down   the  cause   for  further  directions,  and 
then   the  exceptions  and   further  directions   to  come  on 
together.     It  was  in  the  above  case  expressly  laid  down, 
that  the  Court  would  not  allow  a  seller  to  lie  by  before 
the  Master,  and  then  upon  further  directions  attempt  to 
make  a  title.     There  was  an  appeal  from  this  decision, 
but  it  has  since  been  withdrawn. 

(a)   V.  C.  8  Aug.  1822.  MS.  S.  C.  6  Madcl.  366  ;   Paton  r.  Rogers, 
6  Madd.  256. 

VOL.    I.  34  (*220) 


2QQ  OF  THE  CONSEQUENCES  OF 

If  exceptions  are  taken  to  the  report,  that  a  good  title 
can  be  made,  and  are  overruled,  other  objections  to  the 
title  cannot  be  made  ;  but  if  exceptions  are  allowed,  and 
P)a  new  abstract  of  title  is  delivered,  further  objections 
may  of  course  be  brought  in(6). 

In  Noel  V.  Hoy(<:),  the  seller  rested  his  title  on  the  con- 
struction of  a  will,  by  which  he  insisted  the  estate  did  nof 
pass.  The  point  was  decided  against  him,  and  then  he 
asked  for  a  reference  to  the  Master,  to  see  whether  he 
could  make  a  good  title,  as  he  insisted  that  the  devisees 
were  trustees  for  him.  This  reference  was  objected  to  by 
the  purchaser.  The  Court  said,  that  it  should  have  great 
difficulty  in  allowing  the  plaintiff  after  a  decree  to  amend 
his  bill,  by  bringing  new  parties  before  the  Court.  But 
time  had  been  allowed  to  get  an  act  of  parliament.  If  the 
Master  was  of  opinion  that  the  devisees  were  trustees  for 
the  seller,  he  would  report  in  favor  of  the  title.  If  a  suit 
should  be  necessary  to  try  their  equity,  he  would  report 
against  it. 

A  purchaser  may  file  a  bill  for  a  specific  performance, 
although  it  appears  by  the  abstract  that  the  vendor 
has  no  title,  and  yet  unless  he  chooses  to  take  the 
title,  the  Court  cannot  force  it  upon  him,  on  the  ground 
of  his  having  filed  the  bill  with  a  knowledge  of  the 
objection(^)(146). 

Where  objections  are  made  by  a  purchaser,  evidently 
with  a  view  to  gain  time,  the  Court  itself  will  enter  into 
the  consideration  of  the  objections,  without  referring  the 
title  to  a  Master.  So  where  a  bill  is  filed  by  a  purchaser, 
the  vendor,  the  defendant,  has  been  allowed,  after  answer, 
and  before  the   hearing  of  the   cause,   to  move,  that  an 

(6)  Brooke  v. ,  4  Madd.  212. 

(c)  V.  C.  23  Feb.  1820,  MS. 

(d)  Stapylton  v.  Scott,  16  Yes.  jun.  272. 


(146)  See  Waters  v.  Trains,  9  Johns,  Rep.  450.  on  appeal. 

(*221) 


THE  CONTRACT. 


267 


inquiiy  may  be  directed  as  to  the  title,  and  at  what  time 
the  abstract  was  delivered,"  and  whether  it  was  sufficient. 
This  was  allowed,  in  order  to  enable  the  Court  to  dispose 
(*)of  the  cause  with  despatch(e).  Again,  where  a  vendor 
tiled  a  bill  for  a  s})ecific  performance,  and  the  purchaser 
submitted  to  perform  the  contract  if  a  good  title  could 
be  made,  asserting  that  upon  the  abstract  a  good  title  could 
not  be  made,  it  was,  upon  the  motion  of  the  plaintiff,  re- 
ferred to  the  Master  to  inquire  whether  a  good  title  could 
be  made,  and  whether  it  appeared  upon  the  abstract 
that  a  good  title  could  be  made(jQ'  Lord  Eldon  has 
observed,  that  some  degree  of  irritation  was  excited  in 
the  Court  by  persons  called  land-jobbers,  contracting  for 
estates  without  any  intention  of  paying  for  them,  and 
setting  up  defects  of  title,  merely  with  the  view  of  gain- 
ing time,  to  dispose  of  them  ;  and,  on  that  ground.  Lord 
Rosslyn  was  prevailed  upon  to  direct  a  reference  of  the 
title  immediately,  on  motion ;  and  there  is  not  much 
mischief  in  that  upon  a  simple  case  of  specific  perform- 
ance, where  there  is  nothing  more  ;  but  the  relief  may 
be  so  modified  and  qualified,  with  reference  to  the  nature 
and  object  of  the  contract,  that  unless  it  is  purely  that 
point,  great  difficulty  may  arise(.^). 

In  a  later  case.  Lord  Eldon  directed  a  reference  of  the 
title,  upon  the  bill  of  a  vendor,  before  the  answer  was 
put  in.  The  bill  was  a  mere  averment  of  the  contract,- 
putting  no  special  fact  in  issue,  and  the  Court  considered 
the  plaintiff  as  undertaking  to  do  all  such  acts,  for  the 
purpose  of  executing  what  the  Court  thinks  right,  as  if 
the  answer  was  in,  and  the  cause  brought  to  a  hearing. 
With  that  undertaking,  if  they  cannot  state  any  objection 
to  the  performance,  and  the  reference  is  merely  to  look 

(e)   Mossr.  Matthews,  3  Ves.  jiin.  279. 
(/)  Wright  n.  Bond,  11  Yes.  jiin.  39. 
{g)    17  Yes.  jun.  278. 

(*222) 


203  O^  'T"^  CONSEQUENCES  OF 

into  the  title,  his  Lordship  did  not  apprehend  the  answer 
to  be  necessary  before  that  reference(/t).  But  if  the 
(*)defendant's  counsel  state  that  there  are  other  objec- 
tions, the  title  cannot  be  referred(z). 

And  in  every  case  where  the  answer,  upon  reasons  solid 
or  frivolous,  insists,  that  the  agreement  ought  not  to  be 
executed,  the  Court  must  first  dispose  of  the  question 
raised(/c).  Therefore,  where  the  question  simply  was, 
whether  the  vendor  of  a  leasehold  estate  was  bound  to 
produce  the  lessor's  title,  a  motion  by  the  purchaser  for 
a  reference  to  the  Master  upon  the  title  was  refused (/). 
So  where  the  defendant,  the  purchaser,  alleges  laches  on 
the  part  of  the  plaintiff,  as  a  ground  for  his  not  being 
compelled  to  perform  the  agreement,  the  Court  will 
decide  the  question  raised,  before  the  title  is  referred  to 
the  Master(w). 

Until  lately,  it  was  not  the  general  practice,  to  make  an 
inquiry,  ab  ante,  at  what  time  the  plaintiff  could  make 
a  title(n).  If,  upon  the  usual  reference  to  the  Master,  to 
inquire  whether  the  seller  could  make  a  good  title,  he 
reported  in  the  affirmative,  it  might,  with  a  view  to  costs, 
have  been  referred  back  to  the  Master,  to  inquire  whether 
a  good  title  could  have  been  made  at  the  filing  of  the  bill ; 

(h)  Balmanno  i'.  Liimley,  1  Yes.  &  Beam.  224. 

(i)   Matthews  v.  Dana,  3  Madd.  470. 

(k)  Blyth  V.  Elmherst,  1  Ves.  &  Beam.  1  ;  see  Paton  v.  Rogers, 
ibid.  351  ;  Biscoe  v.  Brett,  2  Ves.  &  Beam.  377  ;  Fullagar  v.  Clark, 
18  Ves.  jun.  481  ;  Morgan  v.  Shaw,  2  Mer.  138;  Boehm  v.  Wood,  1 
Jac.  &  Walk.  419;  Withy  i'.  Cottle,  1  Turn.  78;  1  Sim.  &  Stu.  174; 
Gordon  v.  Ball,  1  Sim.  &  Stu.  178. 

(/)  Gompertz  v. ,  12  Ves.  jun.  17.     See  Eldridge  v.  Porter,  14 

Ves.  jun.  139  ;  and  see  17  Ves.  jun.  278. 

(m)  See  Blyth  v.  Elmherst,  ubi  sup.  Skelton's  case,  1  Ves.  &  Bea. 
517;  Wallinger  v.  Hilbert,  1  Mer.  104  ;  Lowe  v.  Manners,  1  Mer.  19  ; 
Portman  v.  Mill,  2  Russ.  570. 

(n)  Gibaon  v.  Clarke,  2  Ves.  &  Bea.  103.  See  Jennings  v.  Hopton, 
1  Madd.  211  ;  and  see  Lubin  v.  Lightbody,  8  Price,  606. 

(*223) 


i 


THE  CONTRACT. 


269 


and  if  not,  when  it  was  that  a  good  title  could  be  made(o) ; 
(*)and  this  reference  might  be  made  as  well  after  a  de- 
cree, as  after  an  interlocutory  order.  The  Vice-Chancel- 
lor  (Sir  John  Leach)  considered,  that  great  additional  ex- 
pense and  delay  were  occasioned  by  parties  not  asking, 
in  the  first  instance,  where  the  circumstances  of  the  case 
made  it  material,  that  if  the  Master  should  find  that  a 
good  title  could  be  made,  then  that  he  might  inquire  when 
such  good  title  was  first  shown  to  the  purchaser(/?).  In 
a  later  case  of  Harrington  v.  Secretan,  where  the  pur- 
chaser moved  for  a  second  order,  the  learned  Judge, 
under  the  circumstances,  granted  the  motion  ;  but  made 
a  general  rule,  with  the  approbation  of  the  bar,  which  he 
has  since  regularly  followed,  that  the  first  reference  should 
be  to  see  whether  a  good  title  can  be  made,  and  if  so,  at 
the  request  of  either  party,  to  inquire  when  the  seller  show- 
ed a  title.  This  rule  appears  to  be  entirely  free  from  ob- 
jection. 

When  the  title  is  referred  to  the  Master  upon  motion, 
and  the  report  is  against  the  title,  the  defendant  may 
move  to  dismiss  the  bill  with  costs,  and  the  Court  can 
make  the  order  without  setting  down  the  cause(9'). 

Where  the  purchaser  has  been  a  long  time  in  posses- 
sion of  the  estate,  and  of  the  abstract,  without  objecting 
to  the  title,  a  specific  performance  will  be  decreed  at  once 
without  a  reference  as  to  the  title(r).  But  the  question 
depends  upon  a  conclusion  of  fact.  The  Court  must  be 
satisfied  that  the  purchaser  intended  to  wave,  and  has 
actually  waved  his  right  of  examining  the  title,  and  of 
course  the  waver  may  itself  be  rebutted  by  the  conduct  of 

(o)  Daly  V.  Osborne,  1  Mer.  332  ;  Birch  v.  Haynes,  2  Mer.  444. 

ip)   Hyde  V.  Wroughton,  3  Madd.  279.     See  Anon.  3  Madd.  495. 

iq)  Walters  V.  Pyiuan,  19  Ves.  351  ;  Whitcomb  r.  Foley,  V.  C. 
1821,  MS.;  S.  C.  6  Madd.  3. 

(r)  Fleetwood  v.  Green,  15  Ves.  jun.  694  ;  Margravine  of  Anspach 
r.  Noel,  1  Madd.  310. 

(*224) 


270  OF  THE  CONSEQUENCES  OF 

(*)the  seller,  e.  g.  in  furnishing  further  documents  to  make 
out  the  title(.s).  This  subject  has  already  been  dis- 
cussed(^). 

But  even  after  it  has  been  decided  that  the  right  to  call 
for  the  title  is  waved,  if  for  the  purpose  of  settling  the 
conveyance  a  deed  is  produced,  which  shows  a  bad  title, 
a  specific  performance  will  not  be  decreed.  This  was 
decided  in  Warren  v.  Richardson(w).  The  Lord  Chief 
Baron  observed,  that  though  the  Court  thought  the 
defendant  had  by  his  conduct  waved  that  right,  it  had 
come  out  collateral!}',  that  the  plaintiff  could  not  make  a 
title  acccording  to  his  contract.  It  would  be  a  great  hard- 
ship upon  a  party  to  force  him  to  accept  a  title  which 
was  ascertained  to  be  defective.  It  would  be  contrary  to 
all  the  rules  which  prevail  upon  the  subject  of  specific 
performance.  The  principles  upon  which  courts  of 
equity  have  proceeded  on  the  subject  of  specific  perform- 
ance, do  not  make  a  decree  for  a  specific  performance  the 
necessary  consequence  under  all  circumstances  of  an 
agreement.  Circumstances  of  hardship  often  prevent  it. 
They  recollect  that  the  party  is  not  without  remedy,  for, 
though  he  should  be  refused  a  specific  performance,  he 
has  left  to  him  his  action  upon  the  agreement.  What 
created  the  difficulty  in  this  case  was,  that  the  conduct 
of  the  party  had  barred  his  right  to  the  usual  investigation 
into  the  title,  and  this  defect  was  a  defect  of  title.  If 
the  objection  had  been  to  the  conveyance  merely,  the  de- 
fendant would  have  had  the  full  benefit  of  it  without 
any  doubt.  But  the  objection  was  of  another  description  : 
it  was  an  objection  to  the  title  :  it  stood  decided  upon  the 
record,  that  the  defendant  had  waved  his  right  to  call  upon 
the  plaintiff  for  the  production  of  his  title  ;    on  the  other 

(s)  Burroughs  r.  Oakley,  3  Svvanst.  169. 
(0   Svpra,  p.  10. 
(u)    1  You.  1. 
(*225) 


THE  CONTRACT. 


271 


(*)hand,  it  was  clear  that  the  plamtiff  could  make  no  good 
title,  and  if  the  defendant  took  it,  it  would  be  defective. 

A  new  practice  has  sprung  up,  by  which  certainly  some 
suits  have  been  quickly  disposed  of,  but  which  has  been 
a  great  surprise  upon  many  parties.  I  allude  to  the  prac- 
tice of  ordering  a  purchaser  iJi  possession  of  the  estate  upon 
motion  to  pay  the  purchase-money  into  court.  This, 
under  special  circumstances,  has  been  done  even  before 
ansvver(a;)  ;  but  the  purchaser  has,  in  some  cases,  had  the 
option  to  pay  the  money,  or  give  up  possession(?/)  ;  in 
others,  an  occupation-rent  has  been  set,  deducting  inte- 
rest on  the  deposit(2)  ;  and,  in  others,  a  receiver  has  been 
appointed  (a).  And  payment  of  the  money  will  be  or- 
dered, although  by  the  agreement  it  is  payable  by  instal- 
ments, and  a  portion  of  it  is  to  remain  secured  upon  the 
estate(6). 

This  rule  has  been  adopted  where  the  possession  has 
been  given  under  a  mutual  apprehension  that  the  title 
could  be  immediately  made  good(c) — where  the  purchaser 
had  a  sort  of  mixed  possession  with  the  vendor,  and  had 
paid  part  of  the  purchase-money,  was  insolvent,  and  had 
attempted  without  effect  to  sell  the  estate(c^) — where  the 
purchaser  approved  of  the  title  and  prepared  a  convey- 
ance, and  then  raised  objections(e) — where  the  purchaser 

(.r)  Dixon  i'.  Astley,  1  Mer.  133.  See  Burroughs  f.  Oakley,  1  Mer. 
52,  376  ;   Blackburn  r.  Stace,  6  Madd.  69. 

(y)  Clarke  v.  "Wilson,  15  Ves.  317  ;  Smith  v.  Lloyd,  1  Madd.  83  ; 
Morgan  v.  Shaw,  2  Mer.  138  ;  Wickham  v.  Everest,  4  Madd.  53. 

(c)   Smith  V.  Jackson,  1  Madd.  618  ;    Smith  v.  Lloyd,  1  Madd.  83. 

(a)  Hall  V.  Jcnkinson,  2  Yes.  &  Beam.  125.  See  Clarke  v.  Elliott, 
1  Madd.  606. 

[h)  Younge  r.  Buncombe,  1  You.  275. 

(c)   Gibson  v.  Clarke,  1  Yes.  &  Beam.  500.     See  1  Madd.  607. 

(rf)   Hall  V.  Jenkinson,  2  Yes.  &  Beam.  125. 

(e)  Watson  r.  Upton,  Coop.  92,  n.  But  see  Bonner  v.  Johnston, 
1  Mer.  366  ;  and  See  Crutchley  r.  Jerningham,  2  Mer.  602  ;  Fournier 
V.  Edwards,  T.  T.  1819,  Y.  C.     The  deeds  were  executed,  and  an  ap- 

(*226) 


272  ^^  TH^'  CONSEQUENCES  OF 

(*)hacl  been  guilty  of  laches,  and  cut  undervvood(X).  Even 
in  a  case  where  it  appeared  on  the  face  of  the  abstract 
that  the  title  was  bad,  but  the  purchaser  had  sold  and 
conveyed  the  estate  to  another  purchaser(^).  So  where 
from  circumstances  an  acceptance  of  the  title  was  in- 
ferred(A) — again,  where  a  time  was  fixed  for  payment  of 
the  purchase-money  by  instalments,  and  the  property  was 
a  coal-mine(i).  In  all  these  cases  the  rule  has  been 
applied,  and  if  the  estate  be  sold  under  a  decree,  the  pur- 
chaser, if  he  enters  into  possession,  will  be  compelled  to 
pay  his  purchase-money  into  court,  unless  he  entered 
with  the  express  consent  of  the  Court(k). 

But  where  the  sale  is  not  by  the  Court,  and  the  seller 
has  thought  proper  to  put  the  purchaser  into  possession, 
with  an  understanding  between  them  that  he  shall  not 
pay  his  money  until  he  has  a  title,  the  purchaser  cannot 
be  called  upon  to  pay  the  money  into  court  in  this  sum- 
mary way(/),  nor  can  the  payment  be  compelled  where 
the  vendor  gives  possession  without  stipulation(m),  or 
the  purchaser  was  •  in  possession  under  another  title 
before  the  contract(?2) ;  or  the  possession  was  given 
independently  of  the  contract,  and  the  seller  has  been 
guilty  of  laches(o),  although  in  such  cases  the  purchaser 

plication  was  made  for  the  completion  of  the  purchase,  but  the  purchaser 
had  not  the  money.  The  motion  was  made  upon  the  answer,  by  which 
the  defendant  claimed  compensation  for  some  charges. 

(/)  Burroughs  v.  Oakley,  1  Mer.  52,  376  ;  Dixon  v.  Astley,  1  Mer. 
133,  378,  n.  ;   Bradshaw  v.  Bradshaw,  2  Mer.  492. 

{g)  Brown  V.  Kelty,  L.  I.  Hall,  July  1816,  MS. 

{h)  Boothby  V.  Walker,  1  Madd.  197;  and  see  Smith  v.  Lloyd,  1 
Madd.  83. 

(t)  Buck  V.  Lodge,  18  Ves.  jun.  460. 

{IS)  Anon.  L.  I.  Hall,  16  July  1816,  MS. 

(/)  Gibson  v.  Clarke,  1  Ves.  &  Beam.  500. 

(m)   Clarke  v.  EUiot,  1  Madd.  606. 

(n)  Freebody  v.  Perry,  Coop.  91  ;  Bonner  v.  Johnston,  1  Mer.  366. 

(o)  Fox  V.  Birch,  1  Mer.  105. 

(*227) 


THE  CONTRACT. 


273 


(*)maj  make  himself  liable  to  the  demand,  bj  dealing  im- 
properly with  the  estate,  e.  g.  cutting  trees,  or  selling  it 
to  another  person(p). 

Perhaps  two  simple  rules  may  be  deduced  from  the 
cases:  1st.  Where  the  ])ossession  is  taken  under  the  con- 
tract, or  is  consistent  with  it,  and  the  purchaser  has  not 
dealt  improperly  with  the  estate,  the  cause  must  lake  its 
regular  course. 

But  2d,  If  the  possession  by  the  purchaser,  without 
payment  of  the  money,  is  contrary  to  the  intention  of  the 
parties,  or  is  held  according  to  it,  but  the  purchaser  has 
exercised  improper  acts  of  ownership,  for  example,  cutting 
timber,  by  which  the  property  is  lessened  in  value,  or 
selling  the  estate,  by  which  the  first  seller's  remedy  is 
complicated  without  his  assent;  in  such  cases,  the  Court 
will  interpose  and  compel  the  purchaser  to  pay  the  pur- 
chase-money into  court. 

Where  the  sum  is  large,  the  Court  has  allowed  a  long 
day,  for  instance,  three  months  for  payment  of  the 
money{q)  ;  and  under  proper  circumstances,  the  time 
will  be  enlarged  (r). 

Where  a  vendor  files  a  bill  for  an  injunction  and  a 
specific  performance,  the  Court  will^  upon  granting  the 
injunction,  put  hiin  upon  proper  terms,  and  therefore  will 
in  most  cases  order  him  to  pay  the  deposit  into  court. 
But  where  the  seller  at  the  time  of  the  bill  filed  is  able 
and  willing  to  make  a  good  title  to  the  estate  sold,  and 
the  purchaser  improperly  refuses  to  complete  the  contract, 
(*)although  the  seller  is  in  possession  of  the  estate,  he 
will   not   be  compelled  to  pay  the  deposit  into  court,  be- 

(p)  Cutler  V.  Simons,  2  Mer.  103  ;  Bramby  v.  Teal,  3  Madd.  219  ; 
Gill  V.  Watson,  ibid.  225. 

(7)  Townshend  r.  Townshend,  L.  I.  Hall,  March  3,  1817,  Master 
of  the  Rolls  for  the  Lord  Chancellor.      MS. 

(r)  Brown  v.  Kelty,  Michaelmas  Term,  1816,  MS.,  the  Vice-Chan- 
cellor  for  the  Lord  Chancellor  ;   Townshend  v.  Townshend. 

vol..    I.  36  (*22S)    (*229) 


274  ^^  "TH^  CONSEQUENCES  OF 

cause  it  is  the  fault  of  the  purchaser  and  not  of  the  seller 
that  the  latter  retains  both  the  deposit  and  the  estate(5). 

Although  the  defendant,  by  his  answer,  put  in  issue  an 
objection  to  the  title,  and  both  parties  examine  witnesses 
to  the  point  before  the  hearing,  yet,  upon  a  reference  to 
the  Master,  both  sides  may  produce  further  evidence  be- 
fore him(^). 

If  the  seller  has  vested  in  him  legally,  or  equitably,  all 
the  interest  in  the  estate,  it  cannot  be  objected  to  the 
Master's  report  in  favor  of  the  title  that  the  legal  estate 
is  outstanding,  although  in  a  lunatic,  against  whom  no 
commission  has  issued(I).  The  vendor  has  the  power, 
provided  he  will  take  the  means  necessary  for  the  pur- 
pose of  making  a  good  title.  If  he  neglect  this,  the  ques- 
tion will  properly  arise  when  the  Master  comes  to  settle 
the  conveyance(w). 

Where  an  estate  is  sold  in  lots  to  different  persons,  the 
vendor  cannot  include  them  in  one  bill,  for  each  party's 
case  is  distinct,  and  must  depend  upon  its  own  peculiar 
circumstances,  and  there  must  be  a  distinct  bill  upon  each 
contract(a').  In  demurring  to  a  bill  against  distinct  pur- 
chasers, as  multifarious,  the  defendants  need  not  deny 
combination (?/),  although  that  was  formerly  deemed  es- 
sential(2). 

If  the  purchaser's  defence  to  a  bill'  for  a  specific  per- 
formance (*)rest  merely  on  the  want  of  title  in  the  ven- 
dor, he  ought  to  depend  on  his  answer,  and  not  to  file  a 
cross-bill  to  have   the  agreement  delivered  up  ;  because 

(s)  Wynne  v.  Griffith,  1  Sim.  &  Stu.  147. 
(t)  Vancouver  1'.  Bliss,  11  Ves.  jun.  458. 
(u)  Berkeley  v.  Dauh,  16  Ves.  jun.  380. 

(r)  Rayner  v.  Julian,  2  Dick.  677  ;  Brookes  v.  Lord  Whitworth,  1 
Madd.  86. 

(y)  Brookes  r.  Whitworth,  1  Madd.  86. 
(z)  Bull  I'.  Allen,  Bunb.  69. 

(I)  This  is  not  now  a  serious  difficulty. 
(*230) 


4 

■•I '  ■ 


THE  CONTRACT. 


275 


the  vendor  can  make  no  use  of  the  contract  if  he  have  no 
title(«).  And  a  purchaser  should  not  make  the  stewards 
or  receivers  of  the  vendor  parties  to  his  bill  for  a  specific 
performance ;  for  although,  as  we  have  already  seen,  the 
vendor  is  deemed  a  trustee  for  the  purchaser,  yet  this  rule 
does  not  extend  to  the  agents  of  the  vendor(6). 

Where  the  plaintiff,  in  a  bill  for  a  specific  performance, 
cannot  prove  his  agreement,  as  laid  ;  but  the  defendant, 
who  proves  the  agreement  to  be  different,  offers  to  perform 
specifically  the  agreement  which  he  represents  ;  the  Court 
will  execute  the  agreement  as  proved  by  the  answer, 
without  a  cross-bill,  although  the  plaintiff  should  wish  to 
have  the  bill  dismissed(c),  if  the  Court  think  the  defend- 
ant entitled  to  a  specific  performance(rf)(147). 

But,  if  a  plaintiff  insist  upon  a  particular  construction 
of  a  contract,  and  the  Court  decides  against  him,  he  will 
not  be  allowed  a  specific  performance  according  to  the 
construction  against  which  he  has  contended.  It  is  not 
like  the  case  of  a  plaintiff  calling  upon  the  Court  to  con- 
strue and  execute  an  agreement  according  to  the  true 
construction ;  suggesting  that  which  he  conceives  to  be 
so(e). 

If  a  bill  for  a  specific  performance  be  dismissed,  it 
would  require  a  clear  and  distinct  case  to  be  made  out 
and  prayed,  to  entitle  the  plaintiff  to  an  account  of  rents, 
or  the  \\kc(f). 

(*)If  a  purchaser  have  recourse  to  equity,  and  it  appear 
that  the  vendor  has,  since  the  filing  of  the  bill,  sold   the 

(«)   lliltoti  V.  Barrow,  1  Ves.  jun.  284. 
(6)   Macnamara  v.  Williams,  6  Ves.  jun.  148. 
(0  Fife  r.  Clayton,  13  Ves.  jun.  546. 
{(l)  Iligginson  r.  Clowes,  15  Ves.  jun.  516. 
(c)    Clowes  V.  Iligginson,  1  Ves.  &  Beam.  524. 
(/)  Williams  v.  Shaw,  3  Russ.  178,  and  Stevens  v.  Guppy,  3  Russ. 
171. 

(147)    See  ^isketv  v.  Puyas,  2  Des.  145. 

C*231) 


276  OF  THE  CONSEQUENCES  OF 

estate  to  another  person,  the  Court  will,  it  has  been  deter- 
mined, refer  it  to  a  Master  to  inquire  what  damage  the 
purchaser  has  sustained  ;  and  the  sum  which  shall  be  found 
due,  together  with  costs,  will  be  directed  to  be  paid  to 
him(^)(148).  Equity,  however,  cannot  give  the  purchas- 
er any  compensation  where  he  files  a  bill  to  Jiave  the  con- 
tract delivered  up  on  account  of  the  defective  title  of  the 
vendor.  But  he  will  obtain  a  decree  for  delivering  up  of 
the  contract,  without  prejudice  to  his  remedy  at  law  for 
breach  of  it(/0(149). 

In  a  recent  case,  upon  a  specific  performance,  where 
Lord  Eldon  refused  to  direct  an  issue  or  an  inquiry  be- 
fore the  Master,  with  a  view  to  damages,  his  Lordship 
said,  that  the  plaintiff  must  take  that  remedy,  if  he  chooses 
it,  at  law.  In  Denton  v.  Stewart,  the  defendant  had  it 
in  his  power  to  perform  the  agreement,  and   put  it  out  of 

(g)  Denton  v.  Stewart,  1  Cox,  258  ;  1  Ves.  jun.  329  ;  17  Ves.  jun. 
276,  cited;  Reg.  Lib.  A.  17S5,  fol.  652,  717;  supra,  p.  116,  n.  ; 
Greenvvay  v.  Adams,  12  Ves.  jun.  395. 

{h)   Gwillim  v.  Stone,  14  Ves.  jun.  128. 

(148)  As  to  the  principles  by  which  a  court  of  equity  will  be  govern- 
ed in  retaining  a  bill  for  a  compensation  in  damages,  in  cases  where  the 
agreement  cannot  be  specifically  decreed,  see  Hatch  v.  Cobb,  4  Johns. 
Ch.  Rep.  559.  KempshaU  v.  Slone,  5  Johns.  Ch.  Rep.  193.  Phillips 
V.  Thompson,  1  Johns.  Ch.  Rep.  131.  Hepburn  v.  Auld,  5  Cranch, 
262,  275.     Sims''  Admr.  v.  Lewis,  5  Munf.  29. 

In  Fulweiler  v.  Baugher,  15  S.  &  R.  45,  where  the  action  was  on 
b®nds,  being  part  of  the  consideration  of  land  sold  ;  and  it  being  agreed 
that  the'title  was  defective  for  a  part,  which  was  to  be  cured  by  a  title  to 
be  given  by  (he  plaintiff,  held,  that  in  the  event  of  the  plaintiff's  inability 
to  give  a  title,  the  court  will  grant  a  new  trial.  "  It  is  like  the  case 
where  part  is  recovered  from  the  vendee  by  adverse  title  ;  in  which  case 
the  price  of  that  part,  in  proportion  to  the  residue,  is  to  be  deducted  from 
the  bond,  before  any  interest  is  calculated  on  the  bond.  But  to  this 
there  may  be  an  exception,  if  the  vendee  has  enjoyed  the  land  during 
the  time  interest  is  demanded  ;  and  this  is  a  matter  of  evidence  for  the 
jury." 

(149)  See  Sims^  Admr.  v.  Lewis,  ut  supra. 


THE  CONTRA'CT. 


277 


his  power  pending  the  suit.  The  case,  if  it  was  not  to  be 
supported  upon  that  distinction,  was  not  according  to  the 
principles  of  the  Cou^t(^), 

In  a  late  case(/c),  where  a  seller  had,  after  a  contract 
for  sale,  sold  at  an  advance  to  another  person,  the  bill 
filed  by  the  first  purchaser  prayed,  that  if  the  second  pur- 
chaser bought  without  notice,  the  seller  might  account  to 
the  plaintiff  for  the  advanced  price.  It  was  not  necessary 
to  decide  the  point ;  but  Lord  Eldon  observed,  that  the 
estate  by  the  first  contract,  becoming  the  property  of  the 
vendee,  the  effect  was,  that  the  vendor  was  seized  as  a 
(*)trustee  for  him ;  and  the  question  then  would  be,  whe- 
ther the  vendor  should  be  permitted  to  sell  for  his  own  ad- 
vantage the  estate  of  which  he  was  so  seised  in  trust,  or 
should  not  be  considered  as  selling  it  for  the  benefit  of 
that  person  for  whom,  by  the  first  agreement,  he  became 
trestee,  and  therefore  liable  to  account.  The  ultimate 
decision  was,  that  the  first  purchaser  was  entitled  to 
a  specific  performance  against  the  seller  and  the  second 
purchaser,  the  latter  being  considered  to  take  subject 
to  the  equity  of  the  first  purchaser,  to  have  a  convey- 
ance of  the  estate  at  the  price  which  he  agreed  to  pay  for 

it  {I). 

But  where  the  contract  has  been  executed,  a  bill  can- 
not be  filed  simply  for  compensation,  e.  g.  where  the 
rental  of  the  estate  was  represented  higher  than  its  actual 
amount(/«). 

It  may  here  be  observed,  that  if  an  exception  taken  to 
a  report  that  a  good  title  connot  be  made,  be  overruled, 
the  vendor  should  obtain  an  order  for  the  exception   to 

(t)  Todd  V.  Gee,  17  Ves.  jun.  273  ;  Blore  v.  Sutton,  3  Mer.  237, 

Kendall  v.  Beckett,  2  Russ  &  Myl.  88. 

(A;)   Daniels  v.  Davison,  16  Ves.  jun.  249. 

(/)   17  Ves.  jun.  433. 

(m)  Newham  v.  May,  10  Price,  117.      ' 

(*232) 


278  ^^  THE  CONSEQUENCES  OF 

Stand  over ;  as,  if  disallowed,  it  would  appear  upon  record 
that  a  good  title  could  not  be  made(n). 

If  the  abstract  be  not  delivered  in  time,  or  objections 
arise  to  the  title,  the  vendee  may  bring  an  action  at  law 
for  non-performance  of  the  agreement,  in  which  case  the 
vendor's  remedy  (if  he  can  insist  on  the  contract  being 
specifically  perfornaed)  is  to  file  a  bill  for  a  specific  per- 
formance, and  an  injunction  to  restrain  the  proceedings 
at  law  ;  and  the  vendor  may  file  his  bill  for  a  performance 
in  specie,  although  the  vendee  may  have  recovered  his 
deposit  at  law.  If  an  injunction  be  granted,  the  Court 
will  not  dissolve  it  without  the  Master's  report  as  to  the 
(*)title,  where  the  action  is  brought  on  the  ground  of 
want  of  title(o). 

If  a  purchaser,  upon  a  bill  being  filed  for  a  specific 
performance,  pay  the  purchase-money  without  putting  in 
an  answer,  and  afterwards  discover  that  a  fraud  was  com- 
mitted in  the  sale,  he  is  not  precluded  from  bringing  an 
action  for  damages  if  he  come  recently  after  discovery  of 
the  deception(;j). 

But  if  a  defendant  in  a  suit  for  a  specific  performance, 
after  a  decree,  bring  an  action  at  law  against  the  plaintift' 
in  equity  for  damages,  and  the  decree  proceeded  upon 
the  ground  that  he  had  waved  the  literal  performance  of 
the  thing,  for  breach  of  which  the  action  is  brought, 
€.  g.  the  time  appointed  for  performance  of  the  contract, 
Equity  will  enjoin  the  action(9). 

Where  the  purchaser  has  paid  any  part  of  the  purchase- 
money,  and  the  seller  does  not  complete  his  engagement, 
so  that  the  contract  is  totally  unexecuted,  he,  the  pur- 
chaser, may  affirm  the  agreement,  by  bringing  an  action 

[n)  See  1  Yes.  jun.  567. 

(o)   Church  r.  Legeyt,  1  Pr.  301. 

(p)  Jeudwine  v.  Slade,  2  Esp.  Ca.  257. 

(g)  Reynolds  v.  Nelson,  6  Mud.  290. 

(*233) 


THE  CONTRACT.  279 

for  the  non-performance  of  it,  or  he  may  elect  to  disaffirm 
the  agreement  ab  initio,  and  may  bring  an  action  for 
money  had  and  received  to  his  use(r)(150). 

In  this  latter  action,  however,  the  plaintiff  cannot  re- 
cover more  than  the  money  paid,  although  the  estate  has 
•  risen  in  value  ;  while,  on  the  other  hand,  it  may  perhaps 
be  thought,  that  if  the  estate  has  experienced  a  diminu- 
tion in  value,  he  can  only  recover  the  damages  he  sustain- 
ed by  the  estate  not  being  conveyed,  that  being  the  only 
money  retained  by  the  defendant  against  conscience ; 
(*)and  therefore  the  plaintiff,  ex  cequo  et  bono,  ought  not 
to  recover  any  niore(5)(151). 

The  right  to  disaffirm  the  agreement  is,  in  some  cases, 
of  great  importance.  If  an  agent  enter  into  an  agree- 
ment on  behalf  of  his  principal,  but  on  the  face  of  the 
agreement  the  agent  appear  to  be  the  real  purchaser,  and 
is  so  considered  by  the  vendor,  yet  if  the  purchaser 
actually  pay  the  deposit,  although  through  the  medium 
of  his  agent,  and  the  vendor  do  not  complete  his  engage- 

(r)  See  2  Burr.  1011  ;  Farrer  v.  Nightingale,  2  Esp.  Ca.  639; 
Hunt  V.  Silk,  5  East,  449  ;  Squire  v.  Tod,  1-^'amp.  N.  P.  293.  See 
liCvy  V.  IIuw,  1  Taunt.  65. 

(«)  See  Moses  V.  M'Farlan,  2  Burr.  1005;  Dutch  v.  Warren,  t6. 
1010,  cited  ;  and  Str.  406  ;  S.  C.  Dale  v.  Sollet,  4  Burr.  2133,  sed. 
qii 

(150)  See  Weaver  v.  Benlleij,  1  Caines'  Rep.  47.  Gullet  v.  Mmj- 
nard,  5  Johns.  Rep.  85,  and  see  S.  C.  note  a.  p.  88,  where  the  prin- 
cipal authorities  are  collected.  So,  a  vendor,  by  bringing  a  suit  and  ob- 
taining judgment  for  the  purchase  money,  confirms  the  sale,  so  that  he 
cannot,  afterwards,  set  it  riside.  JVelson  v.  Carringlon,  4  Munf.  332. 
.  (151)  If  there  be  no  fraud,  and  no  covenants  taken  to  secure  the 
title,  the  purchaser  of  real  estate  has  no  remedy  for  the  purchase-money 
on  a  failure  of  title.  Mbot  v.  Jillen,  2  Johns.  Ch.  Rep.  519.  See 
Dorsey  v.  Jackman,  1  Serg.  &  Rawle,  42.  Howes  v.  ^arAer,  3  Johns. 
Rep.  506.  Note,  the  authority  of  JMoses  v.  JWFerlans,  referred  to  in 
the  text,  has  been  much  questioned.  See  O^Harra  v.  Hall,  4  Dall. 
340,  341. ;  and  see  1  Serg.  and  Rawle,  61. 

(*234) 


230  ^^  'THE  CONSEQUENCES  OF 

ment,  so  that  the  contract  is  rescindable,  the  purchaser 
himself  may  maintain  an  action  for  recovery  of  the  de- 
posit, which  will  be  considered  as  money  received  by  the 
vendor  to  the  use  of  the  real  purchaser(^). 

But  if  a  man  enter  into  a  contract  expressly  as  agent 
for  a  third  person,  although  really  for  his  own  benefit, 
and  the  other  party  has  no  notice  that  the  supposed 
agent  is  the  principal,  the  latter  cannot  maintain  an 
action  upon  the  contract  without  first  disclosing  to  the 
other  party  that  he  is  the  principal (w). 

Where  a  purchaser  rests  his  action  on  a  defect  in  the 
title,  it  is  not  sufficient  to  show  that  the  title  has  been 
deemed  insufficient  by  conveyancers,  but  he  must  prove 
the  title  bad(a;). 

If  he  succeed  in  proving  the  title  bad,  he  will,  according 
to  the  counts  upon  which  he  recovers,  obtain  a  verdict 
either  for  his  deposit,  or  for  damages,  which  in  most 
cases  would  be  regulated  by  the  amount  of  the  deposit. 

If  he  declare  on  the  common  money-counts,  he  of  course 
(*)cannot  obtain  any  damages  for  the  loss  of  his  bargain; 
and  even  if  he  affirm  the  agreement  by  bringing  an  action 
for  non-performancetof  it,  he  will  obtain  nominal  damages 
only  for  the  loss  of  his  bargain(?/),  because  a  purchaser  is 
not  entitled  to  any  compensation  for  the  fancied  good- 
ness of  his  bargain  which  he  may  suppose  he  has  lost, 
where  the  vendor  is,  without  fraud,  incapable  of  making  a 
title(152).  I 

{t)  Duke  of  Norfolk  V.  Worthy,  1  Camp.  Ca.  337.  See  Edden  v. 
Read,  3  Campb.  Ca.  338  ;  Bethune  v.  Farebrother,  5  Mau.  &  Selw. 
386,  391,  cited. 

(«)  Bickerton  v.  Burrell,  6  Mau.  &  Sel.  383. 

{x)  Camfield  v.  Gilbert,  4  Esp.  Ca.  221. 

(y)  Flureau  v.  Thornhill,  2  Blaks.  1078  ;  and  see  3  Bos.  &  Pull. 
167.     See  Brig's  case,  Palm.  364.  .^ 

(152)  Where  land  is  sold  with  warranty,  and  the  purchaser  is  evicted, 
the  measure  of  damages,  unless  fraud  has  been  practised,  is  the  price 
(*235) 


li 


THE  CONTRACT. 


281 


And  in  a  late  case(2),  where  an  auctioneer  who  had 
advanced  some  money  on  an  estate,  sold  it  by  auction 
after  the  authority  from  his  principal  had  expired,  and 
the  principal  refused  to  confirm  the  sale,  the  Court  of 
Common  Pleas,  in  an  action  brought  by  the  purchaser, 
in  which  he  declared  on  the  agreement,  and  for  money 
had  and  received,  &:c.  would  not  allow  him  damages  for 
the  loss  of  his  bargain,  although  it  was  proved  that  the 
estate  was  worth  nearly  twice  the  sum  which  he  gave 
for  it. 

But  in  a  recent  case(«),  where  a  person  who  had  con- 
tracted for  the  purchase  of  an  estate,  but  had  not  obtain- 
ed a  conveyance  of  it,  sold  it  by  auction  with  a  stipula- 
tion to  make  a  good  title  by  a  day  named,  but  which  he 
was  unable  to  do,  as  the  vendor  to  him  refused  to  convey, 
it  was  held,  that  the  purchaser  by  auction  might,  beyond 
his  expenses,  recover  damages  for  the  loss  which  he  sus- 
tained by  not  having  the  contract  carried  into  effect.  Lord 
Tenterden  observed,  that  upon  the  present  occasion  he 
could  only  say,  that  if  it  is  advanced  as  a  general  proposi- 
tion, that  where  a  vendor  cannot  make  a  good  title,  the 
purchaser  shall  recover  nothing  more  than  nominal  dam- 
ages, he  was  by  no  means  prepared  to  assent  to  it.  If  it 
were  necessary  to  decide  the  point,  he  should  desire  (*)to 

(z)  Bratt  V.  Ellis,  MS.  Appendix,  No.  7  ;  and  see  Jones  v.  Dyke, 
MS.  Appendix,  No.  8. 

{a)  Hopkins  v.  Grazebrook,  6  Barn.  &  Cress.  31  ;  9  Dowl.  &  R. 
22,  S.  C. 

agreed  to  be  paid  by  the  purchaser.  In  cases  of  fraud,  the  jury  are  not 
limited  to  the  price,  but  may  award  in  damages  the  amount  of  the  inju- 
ry sustained  by  the  loss  of  the  land.  King  v.  Pyle,  8  S.  &  R.  166. 
If  notice  is  duly  given  of  the  suit,  and  the  warrantor  does  not  defend, 
the  record  of  the  recovery  is  conclusive  against  him,  in  an  action  of 
covenant  on  the  warranty.  If  the  vendee  defends  without  giving  no- 
tice, he  cannot  recover  his  expenses,  unless  in  a  cose  of  fraud  or  the 
absence  of  the  warrantor.  Fuhveiler  v.  Baugher  ct  al.  16  ib.  45. 
VOL.  I.  36  (*236) 


it 


232  OF  THE  CONSEQUENCES  OF 

have  time  for  consideration.  But  the  circumstances  of 
this  case  showed  that  it  differed  very  materially  from  that 
which  had  been  quoted  from  Sir  W.  Blackstone's  Reports. 
There  the  vendor  was  the  owner  of  the  estate,  and  an  ob- 
jection having  been  made  to  the  title,  he  offered  to  con- 
vey the  estate  with  such  title  as  he  had,  or  to  return  the 
purchase-money  with  interest ;  here  no  such  offer  was  or  | 
could  be  made.  The  defendant  had  unfortunately  put 
the  estate  up  to  auction  before  he  got  a  conveyance.  He 
should  not  have  taken  such  a  step  without  ascertaining 
that  he  would  be  in  a  situation  to  offer  some  title,  and 
having  entered  into  a  contract  to  sell,  without  the  power 
to  confer  even  the  shadow  of  a  title,  he  must  be  responsi- 
ble for  the  damage  sustained  by  a  breach  of  his  contract. 
Mr.  Justice  Bayley  said,  that  the  case  of  Flureau  v. 
Thornhill  was  very  different  from  this,  for  here  the  ven- 
dor had  nothing  but  an  equitable  title.  Now  where  a 
vendor  holds  out  an  estate  as  his  own,  the  purchaser  may 
presume  that  he  has  had  a  satisfactory  title,  and  if  he 
holds  out  as  his  own  that  which  is  not  so,  he  may  very 
fairly  be  compelled  to  pay  the  loss  which  the  purchaser  sus- 
tains by  not  having  that  for  which  he  contracted. 

This  case  is  one  of  great  importance,  and  will,  1  fear, 
tend  to  much  litigation  before  the  distinction  which  it  in- 
troduces is  thoroughly  understood. 

In  the  later  case  of  Walker  v.  Moore(6),  where  after 
the  contract  the  abstract  was  delivered  and  showed  a 
good  title,  but  it  had  not  been  examined  with  the  deeds  ; 
the  purchaser  resold  the  estate  at  a  profit,  and  then  upon 
an  examination  of  the  deeds  it  appeared  that  the  title 
was  defective,  and  he  had  to  pay  to  the  second  purchasers 
the  costs  of  investigating  the  title  ;  it  was  held  that  the 
original  purchaser  could  not  recover  from  the  original 
(*)seller  the  costs  of  the  resale  or  the  costs  paid  to  the 

(6)   10  Barn.  &  Cres.  416. 
(*237) 


THE  CONTRACT. 


283 


second  purchasers,  or  any  damages  for  the  loss  of  the 
bargain.  The  case  of  Hopkins  v.  Grazebrook  was  said  to 
be  very  different  from  this.  There  the  defendant  had 
sold  property  as  his  own  which  was  not  so,  and  the  Court 
was  of  opinion  that  the  defendant  being  in  fault,  by  re- 
presenting himself  as  the  owner  of  the  property,  the  plain- 
tiff's right  was  not  restrained  to  nominal  damages.  Here 
the  defendants  undertook  to  make  a  good  title,  and  they 
might  honestly  think  they  should  be  enabled  to  do  so.  The 
right  to  dama;2,es  generally  was  held  to  be  concluded  by 
Flureau  and  Thornhill.  And  as  to  the  expenses  upon  the 
resale,  as  there  was  no  fraud,  negligence  in  preparing  the 
abstract  was  the  only  thing  that  could  be  imputed  to 
the  sellers,  and  the  purchaser  by  exercising  ordinary  care 
might  have  averted  the  loss  that  had  arisen  from  that 
negligence.  It  is  usual  and  reasonable,  before  any  ex- 
pense is  incurred,  to  examine  the  abstract  with  the  deeds, 
and  the  purchaser  ought  not  to  recover  expenses  which 
he  had  sustained  by  reason  of  his  having  contracted  to 
resell  the  premises  before  he  had  taken  the  trouble  to 
ascertain  whether  the  abstract  was  correct  or  not. 

But  one  of  the  Judges  expressed  his  opinion,  that  if 
the  abstract  had  been  examined  with  the  deeds  and  found 
correct,  the  purcliaser  might  perhaps  have  been  justified 
in  acting  on  the  faith  of  having  the  estate,  and  if  after 
that  time  he  had  made  a  sub-contract,  the  learned  Judge 
thought  he  would  have  been  entitled  to  recover  the  ex- 
penses attending  it,  if  it  failed  in  consequence  of  any  defect 
in  the  title  of  his  vendor.  And  further,  if  there  were  mala 
Jicles  in  the  original  vendor  (but  not  otherwise),  he  was 
not  prepared  to  say  that  the  purchaser  might  not  recover 
the  profits  which  would  have  arisen  from  the  resale. 

In  a  case  of  this  nature  a  purchaser  is  not  entitled  to 
any  compensation,  although  he  may  be  a  loser  by  having 
(*)sold   out  of  the  funds,  which  may  have  arisen  in  the 

(*238) 


234  ^*'  '^"^  CONSEQUENCES  OF 

mean  time,  because  he  had  a  chance  of  gaining  as  well  as 
losing  by  a  fluctuation  of  the  price(c). 

But  a  purchaser  is  entitled  to  interest  on  his  deposit(6/)  ; 
and  if  the  residue  of  the  purchase-money  has  been  lying 
ready  without  interest  being  made  by  it,  he  is  entitled  to 
interest  on  that(e).  Where  the  plaintiff  recovers  under 
a  special  count  on  the  original  contract,  which,  we  have 
seen,  affirms  the  agreement,  interest  will  be  given  as  part 
of  the  damages  for  non-performance  of  the  agreement  : 
where  he  recovers  under  a  count  for  money  had  and 
received,  which  disaffirms  the  contract,  and  to  which  is 
mostly  added  a  count  for  interest,  it  may,  it  should  seem, 
be  recovered  as  damages  sustained  by  the  plaintiff",  by 
reason  of  the  money  having  been  withheld  from  him.  If, 
however,  the  original  contract  is  void,  as,  if  it  be  a  parol 
agreement  for  the  sale  of  lands,  the  purchaser  can  only 
recover  his  deposit  in  an  action  for  money  had  and  re- 
ceived, and  will  not  be  allowed  interest(/j(153). 

Where  the  plaintiff  declares  on  the  original  contract, 
and  lays  the  expenses  incurred  in  investigating  the  title, 
&c.  as  special  damages,  he  will  be  entitled  to  recover 
them  as  such(^).  In  one'case  Lord  Ellenborough  threw 
out  a  doubt  upon  this(^)  ;  but  in  a  subsequent  case  before 
his  Lordship,  in  which  Gibbs,  C.  J.,  then  at  the  bar,  was 
counsel  for  the  vendor,  the  defendant,  a  purchaser,  ob- 

(c)  Flureau  v.  Thornhill,  2  Blackst.  1078. 

(d)  See  ch.  10,  infra. 

(e)  Flureau  v.  Thornhill,  ubi  sup. 

(/)  Walker  v.  Constable,  1  Bos.  &  Pull.  306.  In  this  case,  how- 
ever, the  rule  was  laid  down  generally,  that  interest  could  not  be  re- 
covered in  an  action  for  money  had  an  received  ;  and  see  Tappenden 
V.  Randall,  2  Boss.  &  Pull.  472,  sed  qu. ;  and  see  ch.  10,  infra. 

(g)  Flureau  v.  Thornhill,  ubi  sup. ;  Richards  v.  Barton,  1  Esp.  Ca. 
268  ;  Bratt  v.  Ellis  ;  Jones  v.  Dyke,  App.  Nos.  7  &  8. 

(/i)   Camfield  v.  Gilbert,  4  Esp.  Ca.  221. 

(153)   See  Pease  v.  Barber,  3  Caines'  Rep.  366,  367. 


THE  CONTRACT. 


285 


tained  a  verdict  for  his  deposit  with  interest,  and  the 
(*)expeiises  of  investigating  the  title,  without  argument,  it 
being  admitted  that  the  title  was  defective(t)  :  in  a  still 
later  case,  they  were  also  recovered  by  a  purchaser(/c)  ; 
and  there  are  other  cases  not  reported,  in  which  I  am  told 
such  expenses  have  been  recovered.  If  the  rule  were 
otherwise,  it  would  induce  many  persons  upon  speculation 
to  offer  an  estate  for  sale,  knowing  the  title  to  be  bad  ; 
and  yet,  in  a  late  case  at  nisi  prius,  Mansfield,  C.  J. 
held,  that  the  purchaser  was  not  entitled  to  recover  back 
the  expenses  of  investigating  the  title(/). 

But  clearly  the  expenses  cannot  be  recovered  under 
a  count  for  money  had  and  received  ;  and  Lord  Ellen- 
borough  has  decided  that  they  cannot  be  recovered  under 
a  count  for  money  paid,  &c.  to  the  defendant's  use,  as 
the  money  is  expended  for  the  purchaser's  own  satisfac- 
tion as  to  the  title  which  he  is  about  to  take(m)(154). 
Nor  can  the  expenses  of  investigating  the  title  he  reco- 
vered from  the  auctioneer(yi).  The  expense  of  preparing 
the  conveyances  can    hardly  in  any  case  be  recovered, 


(t)  Turner  v.  Beaurain,  Sitt.  Guildh.  cor.  Lord  Ellenborough,  C.  J., 
2d  June  1806.  MS. 

(k)   Kirtlandr.  Pounsett,  2  Taunt.  145.     See  p.  146. 

(l)  Wilde  V.  Fort,  4  Taunt.  334.  Note,  the  C.  J.  also  ruled,  that  in- 
terest on  the  deposit  is  not  recoverable,  which  is  contrary  to  other  autho- 
rities ;  and  too  large  a  construction,  according  to  other  authorities,  ap- 
pears to  have  been  put  on  the  statute  of  Elizabeth. 

(m)  Camfield  v.  Gilbert,  4  Esp.  Ca.  221. 

(n)   Lee  v.  Munn,  1  Holt,  669. 

(154)  In  covenant  brought  by  the  grantee  against  the  grantor,  for 
breach  of  the  covenant  against  incumbrances  in  a  deed,  the  plaintiff  is 
entitled  to  recover,  not  only  the  purchase  money,  and  the  interest,  but 
also  the  costs  of  the  ejpctment  against  him.  Waldo  v.  Long,  7  Johns. 
Rep.  173.  See  Slaats  v.  Ten  Eyck's  Exrs.  3  Caines'  Rep.  111. 
Pitcher  v.  Livingston,  4  Johns.  Rep.  1.  JSIarston  v.  Hobbs,  2  Mass. 
Rep.  433,  440. 

(*239) 


236  OF  THE  CONSEQUENCES  OF 

for  they  should  not  be  prepared  before  the  title  is  ac- 
cepted (o). 

Where  a  vendee  brings  an  action  on  account  of  the 
agreement  not  having  been  completed,  he  will  be  com- 
pelled to  give  the  vendor  a  particular  of  every  matter  of 
fact  which  he  means  to  rely  upon  at  the  trial,  as  having 
been  a  cause  of  his  not  being  able  to  complete  the  pur- 
chase ;  but  he  is  not  bound  to  state  in  his  particular  any 
(*)of  the  objections  in  point  of  law  arising  upon  the  ab- 
stractfjy). 

But  where  no  particular  has  been  obtained,  the  plain- 
tiff is  not  confined  to  the  objections  which  he  may  have 
stated  to  the  defendant,  but  may  take  advantage  of  any 
other,  which  may  entitle  him  to  recover  as  for  breach  of 
the  agreement(^). 

To  entitle  a  vendor  to  sustain  an  action  for  breach  of 
contract,  it  has  been  said,  that  he  must  show  what  title 
he  has  ;  it  not  being  sufficient  to  plead  that  he  has  been 
always  ready  and  willing,  and  frequently  offered  to  make 
a  title  to  the  estate(r).  In  a  late  case(5),  however, 
where  a  vendor  averred,  that  he  was  seised  in  fee,  and 
made  a  good  and  satisfactonj  title  to  the  purchaser  of  the 
estate,  by  the  time  specified  in  the  conditions  of  sale,  it 
was  held  sufficient,  and  that  it  was  not  necessary  for  him 
to  show  how  he  deduced  his  title  to  the  fee.  And  the 
Court  seemed  of  opinion,  in  opposition  to  the  prior  cases, 
that  a  vendor  need  not  display  his  whole  title  on  the 
record.     This  decision,  without  working  an  injustice,  will 


(o)  Jarmain  v.  Egelstone,  6  Carr.  &  Pay.  172. 

(p)   Collet  V.  Thomson,  3  Bos.  &  Pull.  246. 

(9)   Squire  v.  Tod,  1  Camp.  Cas.  293. 

(r)  Philips  V.  Fielding,  2  H.  Blackst.  123;  and  see  Duke  of  St. 
Alban's  v.  Shore,  1  H.  Black.  270 ;   Luxton  v.  Robinson,  Dougl.   620. 

(«)  Martin  v.  Smith,  6  East,  655  ;  2  Smith,  643  ;  and  see  Co.  Litt. 
303,  b  ;  Terry  v.  Williams,  1  Moore,  498. 

(*240) 


THE  CONTRACT.  287 

in  most  cases  render  it  unnecessary  to  load  the  pleadings 
with  the  title  of  the  vendor. 

But  even  if  the  title  is  set  out,  yet  the  execution  of 
the  title-deeds  need  not  be  proved,  because  that  is  never 
required  of  a  vendor(i).  This  was  decided  by  Lord 
Kenyon  at  nisi  prius.  To  prove  the  plaintiff's  title  to 
a  right  of  way  sold,  the  deeds  were  produced  ;  and  it 
was  objected,  that  the  deeds  themselves  should  first  be 
made  evidence,  by  producing  the  subscribing  witnesses. 
(*)But  Lord  Kenyon  ruled  it  not  to  be  necessary.  He 
said,  he  would  never  allow,  where  the  question  was  re- 
specting a  title,  that  the  party  should  be  called  upon  to 
prove  the  execution  of  all  the  deeds  deducing  a  long  title  ; 
that  it  was  never  mentioned  in  the  abstract,  or  expected  in 
making  out  a  title  in  any  case  of  a  purchase,  more  partic- 
ularly w  here  possession  has  accompanied  them  :  he  there- 
fore admitted  them  without  proof  of  the  execution(t<).  In 
a  late  case,  however,  before  Lord  C.  J.  Mansfield,  at  nisi 
prius,  where  in  assumpsit  upon  an  agreement  to  purchase 
a  leasehold  house,  it  appeared  that  the  plaintiff,  the 
vendor,  was  the  third  or  fourth  assignee  of  the  term ;  and 
it  was  contended,  that  he  need  only  prove  the  execution 
of  the  last  assignment :  it  was  ruled  otherwise  ;  and  he 
was  compelled  to  prove  the  lease  and  all  the  mesne 
assignments(2).  Lord  Kenyon's  decision  was  not  how- 
ever adverted  to  ;  and  as  that  clearly  coincides  with  the 
practice  in  these  cases,  it  can  scarcely  be  considered  as 
overruled(I). 

If  the  agreement  is  in  the  hands  Of  one  of  the  parties, 
or  his  attorney,  equity,  in  case  a  bill  is  filed,  will  compel 

(0  Thomson  v.  Miles,  1  Esp.  Ca.  184. 

(?<)  Thomson  v.  Miles,  iibi  sup. 

{x)  Crosby  v.  Percy,  1  Camp.  Ca.  303. 


(I)  The  vendor's  counsel  cited  Nash  v.  Turner,  1  Esp.  Ca.  217  ;  but 
Mansfield,  C.  J.  thought  that  it  did  not  apply. 

(*241) 


238  ^^  '^^^^  CONSEQUENCES  OF 

it  to  be  delivered  up  to  the  other  party,  in  order  that  it 
may  be  stamped(i/).  So,  in  case  of  an  action,  if  only 
one  part  of  the  agreement  has  been  executed,  the  party, 
in  whose  possession  it  is,  shall  be  compelled  to  produce 
it  to  the  other  party(z).  And  if  there  are  even  two  parts, 
but  one  only  is  stamped,  the  party  having  the  unstamped 
part  may  give  secondary  evidence  of  the  contents  of  the 
(*)agreement,  if  the  other,  after  notice,  refuse  to  pro- 
duce the  stamped  part(a).  Where  one  party  produces 
the  agreement,  under  a  notice  from  the  other,  the  latter 
need  not  call  the  subscribing  witness  to  prove  the  execution 
of  the  agreement,  as  the  defendant  takes  an  interest  under 
if(6)(155). 


Where  a  contract  is  not  completed  merely  on  account 
of  objections  to  the  title,  and  the  vendor  thinks  his  title 
good,  he    frequently  brings   an   action   at  law   for   non- 

(y)   Supra,  p.  87. 

{z)  Blakey  v.  Porter,  1  Taunt.  3S6 ;  Bateman  v.  Philips,  4  Taunt. 
157  ;  King  v.  King,  ih.  666  ;  Street  v.  Brown,  1  Marsh.  610. 

(a)  Garnons  v.  Swift,  1  Taunt.  507.  See  Waller  v.  Horsfall,  1 
Camp.  Ca.  501. 

(6)  Bradshaw  v.  Bennett,  5  Carr.  &  Pay.  48. 

(156)  Where  a  subscribing  witness  is  dead  or  abroad,  in  an  action 
on  the  instrument  it  is  necessary  to  give  some  evidence  of  the  identity 
of  the  party  executing  with  the  party  sued,  the  naked  proof  of  the 
handwriting  of  the  subscribing  witness  is  insufficient.  If  the  attestation 
state  the  residence  of  the  party,  proof  that  the  party  sued  resided  there, 
would,  as  it  seems,  be  prima  facie  evidence.  Whitelocke  v.  Musgrove, 
1  C.  St  M.  511  ;  3  Tyr.  541,  S.  C.  This  case  may  be  considered  as 
overruling  the  decisions  of  Lord  Tenterden  and  Best,  Ch.  Js.  in  Mit- 
chell V.  Johnson,  M.  &  M.  176  ;  Page  v.  Mann,  ib.  79  ;  Kay  v.  Brook- 
man,  id.  286 ;  and  as  settling  a  question  which  had  long  been  a  subject 
of  doubt  at  N.  P. 

In  an  action  by  the  vendee  against  the  vendor  of  an  estate,  to  recover 
the  deposit  money  on  a  contract  for  the  purchase,  if  the  defendant  on 
notice  produce  the  contract,  the  plaintiff  need  not  prove  the  contract. 

Bradshaw  v.  Bennett,  1  Moo.  &  M.  143  ;  5  C.  &  P.  48,  S.  C. 

(*242) 


THE  CONTRACT.  90Q 

performance  of  the  agreement,  instead  of  filing  a  bill  for  a 
specific  performance. 

It  becomes  therefore  material  to  consider,  whether 
courts  of  law  can  take  cognizance  of  equitable  objections 
to  a  title ;  because,  if  they  cannot,  a  purchaser  should  in 
such  cases  file  a  bill  in  equity  :  he  might  otherwise  be 
compelled  to  pay  damages  for  not  accepting  a  title,  which, 
although  good  at  law,  might  be  invalid  in  equity. 

The  adtion  which  a  vendor  must  bring,  being  founded 
upon  the  equitable  circumstances  of  the  case  between  the 
parties,  it  seems  that  a  court  of  law  may  in  such  action 
take  cognizance  of  equitable  objections  to  a  title  ;  and 
if  there  were  any,  ought  not  to  permit  the  plaintiff  to 
recover. 

In  a  recent  c^se(c).,  the  Court  of  B.  R.  would  not  per- 
mit the  assignees  of  a  bankrupt  to  recover  money  from 
his  trustees,  because  the  deed  by  which  the  trusts  were 
created,  although  perhaps  void  at  law,  w^ould  probably 
be  restored  and  set  up  again  by  a  court  of  equity.  The 
Court,  I  am  informed,  said  they  would  not  permit  the 
(*)assignees  to  recover,  as  it  would  be  to  no  purpose.  It 
would  be  merely  driving  the  trustees  to  the  other  side  of 
the  hall,  where  they  would  most  likely  regain  the  property^ 
This  case  seems  in  point ;  the  same  observation  would 
apply  to  a  vendor  endeavoring  to  obtain  the  purchase- 
money  where  there  were  equitable  objections  to  his  title  : 
the  court  would  naturally  say,  cui  bono,  w  hen  the  pur- 
chaser can  compel  you  to  repay  it  in  equity  ?(156). 

(c)  Shaw  V.  Jakeman,  4  East,  201. 

(156)  That  the  mere  cancelling  a  deed  under  which  one  holds  real 
estate,  will  not  divest  the  title  or  revest  it  in  the  grantor,  is  abundantly 
settled.  Hatch  v.  Hatch,  9  Mass.  311  ;  Dando  v.  Tremper,  2  Johns. 
87  ;  Lewis  v.  Payn,  8  Cowen,  75  ;  Botsford  v.  Morehouse,  4  Conn. 
660;  Gilbert  r.  Bulkley,  5  ib.  262;  Holbrook  r.  Tirrell,  9  Pick.  105. 
)3ut  if  the  grantee  delivers  back   his  deed  vilh   a  view  (o  a  conveyance 

VOL.   1.  37  (*243) 


290  O^  THE  CONSEQUENCES  OF 

Lord  Kenyon  held,  that  a  court  of  law  could  not  enter 
into  equitable  objections  to  a  title  ivhere  the  purchaser  is 
plaintiff(d)  ;  but  Lord  Alvanley(e)  decided,  that  if  a  pur- 
chaser would  be  liable  in  equity,  he  is  entitled  to  recover 
his  deposit  at  law.  The  last  case  is  certainly  a  very  strong 
authority,  because  no  Judge  sitting  in  a  court  of  law  could 
be  more  averse  than  Lord  Alvanley  was  to  assume  any 
equitable  jurisdiction^/^.  His  decision  has  been  followed 
in  a  recent  case,  which  appeared  to  have  set  the  point  at 
rest(^).  Lord  C.  J.  Gibbs  said,  that  the  question  was, 
whether  the  contract  were  merely  for  a  good  title,  or  for 
a  legal  and  equitable  title.  Now  the  words  of  the  con- 
dition were,  that  a  good  title  should  be  made  out  at  the 
vendor's  expense.  What  can  the  meaning  of  that  be, 
except  that  there  shall  be  a  good  title  both  at  law  and 
in  equity  ?  The  vendor,  therefore,  not  having  made  out 
a  good  equitable  title,  the  contract  on  the  part  of  the 
defendant  is  broken.     It  is  true  that  we  are  in  a  court 


(<Z)  Allpass  V.  Watkins,  8  Term  Rep.  616. 

(c)  Elliott  V.  Edwards,  3  Bos.  &  Pull.  181. 

(/)  See  Johnson  v.  Johnson,  3  Bos.  &  Pull.  162. 

ig)  Maberly  v.  Robins,  1  Marsh.  268  ;  6  Tatmt.  626  ;  Curling  t. 
Shuttleworth,  6  Bing.  121  ;  3  Moo.  &  P.  368,  S.  C.  In  Willett  v. 
Clarke,  10  Price,  207,  the  Judges  did  not  agree  in  opinion  upon  this 
point. 

to  a  purchaser,  who  receives  a  deed,  without  fraud,  he  will  hold  the  land 
against  a  creditor  of  the  original  grantee.  It  is  no  fraud  upon  credi- 
tors, for  he  received  an  equivalent  for  his  land.  But  where  the  object 
of  cancelling  the  deed  and  obtaining  a  new  one  from  the  grantee  being 
to  defeat  an  attachment  by  a  creditor  if  the  first  grantee,  the  convey- 
ance will  be  fraudulent.  Holbrook  v.  Tirrell,  9  Pick.  105  ;  Marshall 
V.  risk,  6  Mass.  32.  Parsons  C.  J.  says  "  it  was  a  vested  estate  in 
S.  &  F.  and  could  not  be  divested  by  cancelling  the  deed  from  A.,  F. 
therefore  he  continued  seized  of  his  moiety,  when  it  was  taken  on  the 
execution  of  W.  against  him ;  because  the  second  conveyance  bjeing 
fraudulent,  is  void  as  to  the  attaching  creditors  and  because  the  cancel- 
ling of  A.'s  first  deed  did  not  divest  F.  of  his  moiety  conveyed  by  it." 


THE  CONTRACT. 


291 


of  law,  but  we  are  on  the  question  whether  the  contract 
have  been  complied  with.  According  to  the  defendant's 
(*)doctrine,  if  an  estate  be  devised  to  A.  B.  and  [in  trust] 
for  C.  it  might  be  sold  by  A.  and  B.  only,  since  they 
could  give  a  legal  title  to  it  without  the  concurrence  of 
C  And,  if  this  principle  were  to  be  followed  up,  the 
defendant  might  bring  an  action  for  the  remainder  of 
the  purchase-money.  The  rest  of  the  Court  concurred 
with  this  opinion,  Mr.  Justice  Chambre  observing,  that 
there  was  no  reason  why  questions  respecting  equitable 
title  should  not  come  incidentally  before  a  court  of  law. 
Yet  in  Boy  man  v.  Gutch(/t),  the  Court  of  C.  P.  held  that 
they  must  decide  upon  the  construction  of  the  trust  deed 
under  which  the  estate  was  sold,  and  abide  by  their 
construction  ;  that  they  were  not  to  consider  themselves 
as  a  court  of  equity  where  the  seller  is  seeking  to  enforce 
the  purchase,  in  which  case  the  Court  frequently  refuses 
the  aid  of  its  authority  to  enforce  a  specific  performance 
where  the  title  is  of  an  unmarketable  or  even  doubtful 
description,  leaving  the  party  to  his  action  at  law  for 
damages,  but  they  were  called  upon  to  answer  the  simple 
question  upon  the  record,  whether  on  the  construction 
of  a  deed,  the  seller  had  or  had  not  a  legal  title  to  con- 
vey to  a  purchaser.  It  appeared  to  them  that  the  seller 
had  the  right  to  put  up  the  property  to  sell,  and  to  sell 
the  same.  Whether  a  court  of  equity  would  compel  a 
purchaser  to  accept  such  a  title  was  a  question  they 
were  not  called  upon  to  determine.  All  that  they  pro- 
fessed to  determine  was  the  legal  construction  of  the 
deed. 

Before  quitting  this  subject,  it  must  be  remarked,  that 
in  agreements  for  purchase,  the  covenants  are  construed 
according  to  the  intent  of  the  parties  ;  and  they  arc  there- 
fore always  considered  dependent,  where  a  contrary  inten- 


(h)  1  Biiig.  379  ;  5  Moo.  &  P.  222,  S.  C. 


(*214) 


292  ^^  '^"^  CONSEQUENCES  OF 

tion  (*)does  not  appear(z),  (I).  The  true  rule,  Lord  C.  J. 
Mansfield,  in  a  late  case(/f),  said,  was,  that  it  is  not  the 
employment  of  any  particular  word  which  determines  a 
condition  to  be  precedent,  but  the  manifest  intention  of 
the  parties(157). 

The  old  law  was  certainly  in  favor  of  the  contrary 
doctrine(/) ;  but  if,  as  Lord  Kenyon  observed,  the  Courts 
were  to  hold  otherwise  than  they  now  do,  the  greatest 
injustice  might  be  done  ;  for  supposing,  in  the  instance  of 
a  trader  who  had  entered  into  a  contract  for  the  sale  of  an 
estate,  that  between  the  making  of  the  contract  and  the 
final  execution  of  it  he  were  to  become  a  bankrupt,  the 
vendee  might  be  in  the  situation  of  having  had  payment 
enforced  from  him,  and  yet  be  disabled  from  procuring  the 
property  for  which  he  had  paid(m). 

(^')  As  to  where  covenants  are  precedent,  and  where  dependent,  see 
Mr.  Serjeant  Williams's  note(4)  to  1  Saund.  525. 

{k)  Smith  V.  Woodhouse,  2  New  Rep.  233.  See  Havelock  r. 
Gedde.s  10  East,  555. 

(/)   8  Term  Rep.  370,  371. 

(m)  See  Duke  of  St.  Alban's  v.  Shore,  1  H.  Black.  270  ;  Goodis- 

(I)  In  Morris  v.  Knight,  T.  2  Jac.  II.  B.  R.  there  were  mutual  cove- 
nants :  one  agreed  to  pay  a  sum  of  money  for  a  lease  for  years ;  the 
other  covenanted  that  he  should  enter  in  twenty  days,  and  that  he  would 
make  a  demise  thereof,  from  &c.  and  the  plaintiff  brought  an  action  for 
non-payment  of  the  money  before  the  demise  made,  held  not  good  for 
the  lease  is  the  consideration  :   so  judgment  for  the  defendant.     MS. 

(157)  See  Qiiackenboss  \.  Lansing,  6  Johns.  Rep.  49.  Barvuso  v. 
JMadan,  2  Johns.  Rep.  145,  148.  ;  and  see  the  opinion  of  the  court  in 
Cunningham  and  JMorrell,  10  Johns.  Rep.  204.  As  to  dependent  and 
independent  covenants,  see  Obermyer  v.  JMchols,  6  Binn.  159.  Ben- 
net  V.  Pirleij,  7  Johns.  Rep.  249.  See  {"arihei;  J\I\MiUan  v.  Vander- 
lip,  12  Johns.  Rep.  165.  Jennings  v.  Camp,  13  Johns.  Rep.  94. 
Green  v.  Reijnolds,  2  Johns.  Rep.  207.  Jones  v.  Gardner,  10  Johns. 
Rep.  2G6.  Gasleij  v.  Price,  16  Johns.  Rep.  267.  Hardin  v.  Krel- 
singer,  17  Johns.  Rep.  293.  Robh  v.  Alontgomerij,  20  Johns.  Rep. 
15. 

(*245) 


THE  CONTRACT. 


293 


If,  therefore,  either  a  vendor  or  vendee  wish  to  compel 
the  other  to  observe  a  contract,  he  immediately  makes  his 
part  of  the  agreement  precedent ;  for  he  cannot  proceed 
against  the  other  without  an  actual  performance  of  the 
agreement  on  his  part,  or  a  tender  and  refusal(158). 

son  t'.  Nunn,  4  Term  Rep.  761;  Glazebrook  v.  Woodrow,  8  Term 
Rep  366  ;  and  Heard  v.  Wadham,  1  East,  619  ;  and  see  Anicourt  v. 
Elever,  2  Kel.  B.  R.  159  ;  Carpenter  v.  Crcsswell,  4  Biugh.  409  ;  1 
Moo.  &  P.  66,  S.  C. 

(168)  Ramsay  v.  Brailsford,  2  Des.  582.  Green  v.  Rcijnolds,  ut 
supra.     Porter  v.  J?ose,  12  Johns.  Rep.  209. 

According  to  our  practice,  which  is  different  from  the  English,  the 
party  who  is  to  give  the  deed  has  the  same  drawn  at  his  own  expense  ; 
but,  under  a  covenant  to  convey,  he  is  not  bound  to  prepare  the  con- 
veyance until  the  parly  who  is  to  receive  it  is  in  a  situation  rightfully  to 
demand.  And  after  such  demand  the  grantor  is  allowed  a  reasonable 
time  for  drawing  and  executing  it ;  and  he  is  then  to  hold  it  ready  for 
delivery  when  called  for  and  is  in  no  default  until  a  second  demand  is 
made.  The  purchaser  nevertheless  may  prepare  the  deed  and  tender  it 
for  execution — and  then  only  one  demand  is  necessary. 

The  above  appears  to  be  the  settled  law  in  this  state  :  Fuller  r.  Hub- 
bard, 6  Gowen,  1  ;  Connelly  v.  Pierce,  7  Wend.  129  ;  Per  V.  Chan,  in 
Wells  V.  Smith,  2  Edw.  C.  R.  78.  The  case  cited  from  Edwards  was 
thus  ;  Smith  covenanted  to  convey  to  Wells  the  land  in  dispute,  free  of 
incumbrance  ;  and  Wells  covenanted  to  build  a  shop  before  a  specified 
day ;  also  a  dwelling-house,  or  instead  of  it  pay  $1000  ;  and  to  execute 
a  bond  and  mortgage  of  the  house  and  lot  of  land.  But  if  he  did 
not  pay  the  1000  dollars,  then  the  mortgage  was  to  be  made  for  $3700. 
The  day  was  specified  for  Smith  to  execute  her  deed.  "  But  upon  this 
express  condition  and  the  agreement  between  the  parties  is  such  that 
if  the  said  Wells  fails  or  neglects  to  perform  all  or  any  one  of  the  cove- 
nants herein  before  contained  on  his  part,  at  the  time  or  times  herein  be- 
fore limited,  then  and  in  such  case,  all  and  singular  the  covenants  and 
agreements  on  the  part  of  the  said  Smith  shall  cease  and  be  absolutely 
void,  and  all  the  right,  title  and  intererst  of  the  said  Wells  in  law  or  equity 
in  the  premises  shall  also  cease,  and  thereupon  the  said  Smith,  her  heirs 
and  assigns  may  immediately  enter  upon  the  premises  and  have  and 
hold  the  same,  with  the  shop,  free  and  discharged  from  any  claims  of 
the  said  Wells."  Wells  failed  to  perform  his  covenants  as  to  erectins 
the  house  and  securing  the  purchase-money.      But  the  parties  subse- 


294  ^^  'I'HE  CONSEQUENCES  OF 

Thus  a  vendor  cannot  bring  an  action  for  the  purchase- 
money,   (*)without  having  executed  the  conveyance,  or 

quently  came  to  an  understanding  that  if  Wells  would  pay  Smith  the 
whole  of  the  purchase-money  on  the  day  stipulated,  the  latter  would  then 
give  the  former  a  deed  ;  but  she  at  the  same  time  said  to  the  former  that 
if  he  permitted  that  day  to  pass,  she  should  insist  on  the  condition  in  the 
agreement.  Wells  failed  in  paying  the  money  at  the  day  ;  but  on  the 
next  day  he  tendered  the  money  and  demanded  his  deed,  she  refusing 
to  give  a  deed  Wells  sues  his  bill  for  a  specific  performance.  The  V. 
Chan,  considering  the  agreement  a  condition  precedent,  dismissed  the  bill. 
The  grounds  of  this  decision  are  stated  by  our  author  p.  444,  that  time 
was  the  essence  of  the  contract. — "  Where  as  in  the  present  case,  the 
vendor  requires  and  the  vendee  agrees  to  make  it  a  condition  of  the  con- 
tract and  they  insert  the  same  as  a  distinct  and  substantive  part  of  the 
agreement,  namely,  that  a  failure  or  neglect  of  the  purchaser  to  perform 
all  or  any  one  of  his  covenants  at  the  time  specified  (including  the  pay- 
ment of  the  purchase-money  on  a  future  day)  shall  absolutely  determine 
the  contract,  and  the  rights  of  the  purchaser  shall  cease  at  law  and  in 
equity,  and  the  vendor  be  at  liberty  to  re-enter  and  hold  the  property 
discharged  from  all  claim  by  the  purchaser,  it  appears  impossible  to  re- 
gard it  as  an  unmeaning  provision.  Nothing  can  be  stronger  than  the 
clause  in  question.  It  is  a  naked  case  of  a  condition  unperformed  with- 
in time.  The  distinction  is  between  a  condition  precedent  and  subse- 
quent ;  and  the  present  is  clearly  a  condition  precedent,  without  any 
vested  right  or  title.  A  man  enters  into  a  contract  or  makes  a  deed  of 
settlement  or  a  will ;  and  he  agrees  to  grant  or  devise  an  estate  upon  a 
condition  which  he  declares  must  be  performed  before  the  person  to  be 
benefited  can  take  it.  But  in  cases  of  conditions  subsequent  it  is  different : 
the  effect  of  a  breach  is  to  work  a  forfeiture  or  divest  an  estate,  the  court 
can  interpose  upon  the  principle  of  compensation  to  the  party  and  pre- 
vent the  forfeiture.  It  was  urged  that  the  contract  was  in  effect  a  mort- 
gage ;  but  no  legal  title  or  estate  ever  vested  in  the  complainant ;  the 
contract  being  merely  an  agreement  to  convey  upon  a  condition. 

In  the  case  of  Lausenbury  v.  The  Protection  Ins.  Co.  8  Conn.  R. 
459,  where  a  policy  of  insurance  provided  that  if  the  building  should  be 
used  for  the  purpose  of  storing  hazardous  goods,  &c.  the  policy  should 
cease  and  have  no  eflfect,  held,  that  this  was  not  a  condition  precedent ; 
but  must  be  averred  in  pleading  by  way  of  defence.  "  I  give  to  the 
town  of  Stoughton,  my  lot  of  land  in  said  town,  containing  eight  acres, 
&c.  for  the  purpose  of  building  a  school  house,  as  said  town' may  di- 
rect ;  provided  it  is  built  within  100  rods  of  the  meetinghouse — remain- 

(*246) 


THE  CONTRACT.  qQA 

offered  to  do  so,  unless  the  purchaser  has  discharged  him 
from  so  doing(/i)  ;  but  if  the  purchaser  give  a  bill  of  ex- 
change, or  other  security,  for  the  purchase-money,  paya- 
ble at  a  certain  day,  he  must  pay  it  when  due,  and  cannot 
resist  the  payment  even  in  the  case  of  a  bill  of  exchange, 
on  the  ground  that  there  was  no  consideration  for  the 
drawing  of  the  bill,  because  the  seller  has  refused  to  con- 
vey the  estate  according  to  the  agreement.  But  he  will 
have  his  remedy  upon  the  agreement  for  the  non-execu- 
tion of  the  conveyance(o). 

On  the  other  hand,  a  purchaser  cannot  maintain  an  ac- 

(n)  Jones  v.  Barkley,  Dougl.  684  ;  Philips  v.  Fielding,  2  H.  Black. 
123  ;  and  see  3  East,  443. 

(o)  See  Moggridge  v.  Jones,  14  East,  486  ;  3  Camp.  Ca.  38  ;  and 
see  Swan  v.  Cox,  1  Marsh.  176  ;  Spiller  v.  Westlake,  2  Barn.  & 
Adolp.  165. 

der  to  the  demandants.  Although  they  accepted  the  donation,  they 
neglected  building  the  house.  The  Court  decided  that  this  was  upon  a 
condition  subsequent  and  that  the  estate  vested  immediately  ;  but  that 
the  town  had  forfeited  the  estate  by  neglecting  to  comply  with  the  condi- 
tion in  a  reasonable  time.  (Hayden  v.  Stoughton,  5  Pick.  528.  10  ib. 
309.)  And  acceptance  of  perfennance  after  the  time  has  expired  by 
the  terms  of  the  contract  is  prima  facie  evidence  of  a  continuance  of 
the  contract  in  its  original  terms  ;  but  this  is  open  to  explanation.  Mer- 
rill i».  Emery,  10  Pick.  607.  But  where  an  indenture  and  the  estate 
created  by  it  were  to  be  void  and  cease  ;  and  the  right  to  the  landlord 
to  re-enter  upon  failure  to  perform  the  condition  in  respect  to  the  pay- 
ment of  the  rent,  The  Court  Savage  C.  J.,  decided  that  the  plaintifT 
could  not  sustain  his  action  for  the  non-payment  of  rent  without 
showing  a  demand  made  of  the  rent,  on  the  day  it  fell  due,  at  a  conve- 
nient time  before  sun-down.  He  could  not  recover  under  the  statute, 
because  there  was  property  on  the  premises,  which  might  have  been  dis- 
trained.    3  Wend.  R.  230. 

An  instrument  which  in  form  imports  to  be  an  absolute  conveyance, 
may  be  determined  to  be  a  mortgage,  whilst  another  importing  on  its 
face  to  be  a  mortgage  may  be  determined  to  be  a  conditional  sale,  ac- 
cording to  the  intention  of  the  parties,  as  evinced  by  testimony  aliunde. 


296  ^^  '^^^  CONSEQUENCES  OF 

tion  for  breach  of  contract,  without  having  tendered  a 
conveyance,  and  the  purchase-monejQ;). 

This  last  position  has,  however,  been  rendered  doubtful 
by  some  recent  dicta  of  the  Judges(9'),  that  it  is  incum- 
bent on  the  vendor  to  prepare  and  tender  a  conveyance, 
which,  as  a  general  rule,  certainly  seems  to  have  pre- 
vailed when  the  simplicity  of  the  common  law  reigned, 
and  possession  was  the  best  evidence  of  title  ;  but  upon 
modifications  of  estates  being  introduced,  which  were 
unknown  to  the  common  law,  and  which  brought  with 
them  all  the  difficulties  which  surround  modern  titles,  it 
became  necessary  to  make  an  abstract  of  the  numerous 
instruments  relating  to  the  title,  for  the  purpose  of  sub- 
mitting it  to  the  purchaser's  counsel :  and  it  then  became 
usual  for  him  to  prepare  the  conveyance.  This  practice 
(*)has  continued,  and  is  now  the  settled  rule  of  the  profes- 
sion :  the  rule  is,  indeed,  sometimes  departed  from,  but 
this  seldom  happens,  except  in  the  country,  and  it  always 
arises  from  consent,  or  express  stipulation(159). 


(p)   See  1  Esp.  Ca.  191  ;  ex  f  arte  Hylliard,  1  Atk.  147. 

\q)  Lord  Rosslyn,  in  Pincke  v.  Cuiteis,  4  Bro.  C.  C.  332  ;  Mac- 
donald,  C.  B.  in  Grovvsock  v.  Smith,  3  Anstr.  877  ;  Lord  Kenyon,  in 
Heard  v.  Wadham,  1  East,  627 ;  and  Lord  Eldon,  in  Seton  v.  Slade, 
7  Ves.  jun.  278. 

(159)  Tlie  law  in  Pennsylvania  is  different.  In  Sweitzer  v.  Hum- 
mel, 3  S.  &  R.  228,  where  the  vendor  covenanted,  that  upon  payment 
of  the  purchase  money  he  would  give  a  title  to  the  purchaser ;  held,  that 
he  was  bound  to  prepare  and  lender  the  deed  of  conveyance  :  'it  is  evi- 
dent,' said  the  Chief  Justice,  '  that  what  may  be  a  very  convenient  prac- 
tice in  England,  may  be  very  inconvenient  here.^  But,  if  the  purchaser 
deny  having  made  the  purchase,  without  other  objection,  this  was  held, 
to  dispense  with  a  tender  of  the  deed  ;  for  it  would  be  a  nugatory  act 
for  the  vendor  to  tender  a  deed,  which  the  purchaser  told  him  he  would 
not  accept.     Hampton  v.  Speckenagle,  9  ib.  212. 

In  Hudson  v.  Swift,  20  Johns.  27,  it  was  settled,  that  to  put  the  ven- 
dor in  default,  and  entitle  the  vendee  to  recover  so  much  of  the  pur- 
chase money  as  he  had  paid  in  advance,  he  must  tender  the  residue  and 

(*247) 


THE  CONTRACT. 


297 


In  a  late  case(r),  this   point  came  distinctly  before  the 
Court  of  Exchequer,  and  it  was,  in  conformity  to  the  pre- 

(rj  Baxter  v.  Lowi^,  1  Furrest's  Rep.  Exrh.  61  ;  and  see  Martin  t'. 
Sinilh,  2  Smith,  543  ;  but  see  Standley  r.  Kcmmington,  6  Taunt.  £61  ; 
2  Marsh.  276,  S.  C. 


demand  a  conveyance.  And  in  the  subsequent  case  of  Fuller  v.  Hub- 
bard et  al.  6  Cowen,  1,  where  defendants  agreed  in  writing  to  sell  a  lot 
of  land  to  the  plaintifTfor  the  consideration  of  $600;  the  sum  of  $100 
was  paid  at  the  time  :  And  the  residue  was  to  be  paid  in  three  instal- 
ments, when  a  conveyance  was  to  be  made  in  fee,  il  was  held,  that  the 
vendee  was  not  entitled  to  maintain  an  action  on  the  agreement,  with 
money  counts,  although  he  had  paid  the  whole  of  the  purchase  money : 
it  being  incumbent  on  him  to  show  that  he  had  demanded  a  conveyance, 
and  atlcr  wahing  a  reasonable  time,  he  had  offered  also  to  receive  it. 

So,  on  the  other  hand,  v.hcre  the  consideration  money,  though  paya- 
ble by  instalments,  was  ail  due  before  the  vendor  sued  his  action  of  co- 
venant on  the  contract ;  and  the  breach  assigned  was  the  non-payment 
of  the  whole  consideration  money,  held,  that  the  plaintiff  was  bound  to 
declare  precisely  as  though  the  action  had  been  brought  for  the  last  in- 
stalment, viz. — must  aver  a  tender  of  the  deed  by  the  plaintiff.  The 
Court,  Suthrnland,  J.  said,  "  The  defendant  covenanted  to  pay  the 
plaintiff  for  the  land  in  three  equal  annual  payments  ;  '  and  upon  the 
paijment  thereof,  (the  covenant  proceeds)  /  am  to  receive  a  good  warran- 
tee deed  of  said  land.^  The  payment  of  the  money  of  the  last  instal- 
ment, and  the  giving  of  the  deed,  were  to  bo  concurrent  acts.  It  is  well 
settled  that  covenants  like  these  are  dependent,  and  that  neither  party 
cun  recover  against  the  other  without  averring  a  tender  of  performance 
on  his  part ;  a  mere  readiness  to  perform  is  not  sufficient.  If  the  ven- 
dor sues  for  the  consideration  money,  he  must  aver  a  tender  of  such  as 
by  the  terms  of  his  contract,  he  was  to  give.  If  the  action  is  brought 
by  the  vendee  against  the  vendor  for  not  conveying,  he  must  aver  a  ten- 
der of  the  consideration  money  before  suit  brought.  Johnson  v.  Wy- 
gant,  1 1  Wend.  R.  48  ;  S.  P.  Green  v.  Reynolds,  2  Johns.  207  ;  Jones 
r.  Gardner,  10  ib.  266,  and  in  Parker  v.  Parmele,  20  ib.  130.  In  the 
case  last  cited,  it  was  held,  that  the  vendor  could  not  recover  upon  an 
averment  that  he  was  at  the  day  ready  and  willing  to  convey,  but  he 
must  allege  an  absolute  tender  or  offer  to  convey. 

The  cases  of  Northrup  v.  Northrup,  .6  Cowen,  296,  and  Slocum  i<. 
Despard,  8  Wend.,  615,  18,  acknowledge  the  same  general  doctrine; 
but  the  covenants  were  held  to  be  independent,  t'rom  the  circumstance 
that  the  money  was  to  be  paid  to  a  third  person,  and  not  to  the  vendor; 

VOL.  I.  38 


298  ^^  THE  CONSEQUENCES  OF 

sent  practice  of  the  Profession,  decided,  that  the  purchas- 
er, and  not  the  vendor,  is  bound  to  prepare  and  tender  the 

and  that  the  vendee  was  of  course  bound  to  produce  evidence  of  the 
payment  having  been  made  before  the  vendor  was  bound  to  convey. 
There,  a  general  averment  of  readiness  on  the  part  of  the  vendor  was 
held  sufficient ;  because  the  circumstance  mentioned  indicated  the  un- 
derstanding of  the  parties  that  the  payment  was  to  be  first  made. 

In  the  case  of  Brown  v.  Bellows,  4  Pick.  179,  where  (he  plaintiff  su- 
ed in  covenant  broken  upon  an  indenture  wherein  the  plaintiff  agreed  to 
convey  all  his  right,  title,  interest,  &c.  in  a  certain  mill,  &c.  at  the 
price  which  should  be  awarded  by  certain  arbitrators  ;  and  the  defend- 
ant agreed  to  pay  for  the  same,  on  delivery  of  the  deed ;  to  the  per- 
formance of  which  a  penalty  was  annexed  ;  held^  that  if  the  plaintiff 
conveyed  by  metes  and  bounds,  and  made  a  tender  of  the  deed,  it  was 
sufficient,  although  the  deed  did  not  pursue  the  words  of  the  agreement. 
The  deed  was  sufficient  to  pass  the  property  in  the  grantor's  possession, 
with  all  his  right  and  title  to  the  same,  just  as  if  the  words  had  been  in- 
serted. The  case,  said  Putnam  J.  is  like  Martin  v.  Smith,  6  East,  655 
in  principle.  The  tendering  of  the  deed  was  a  performance,  so  far  as 
concerned  the  plaintiff ;  and  "  it  is  a  rule  common  to  all  conditions 
of  obligations,  that  they  be  taken  to  be  accomplished,  when  the  debtor, 
who  is  obliged  under  such  condition,  has  prevented  its  accomphshment." 
1  Evan's  Pothier,  121. 

In  Hunt  V.  Livermore,  6  Pick.  395,  the  plaintiff  gave  the  defendant 
a  bond  for  a  deed  of  certain  land  ;  and  the  defendant  on  the  same  day 
made  his  promissory  note  to  the  plaintiff  for  the  consideration  money, 
for  which  the  plaintiff  acknowledged  by  receipt,  which  recited,  "  but 
provided  the  bargain  is  not  carried  into  effect,  I  am  to  deliver  up  said 
note  upon  said  Livermore's  delivering  said  bond."  The  Court  held, 
that  the  plaintiff  was  not  entitled  to  an  action  on  the  note  without  show- 
ing an  offer  on  his  part  to  give  a  good  deed  of  the  land;  the  bond, 
note  and  receipt  being  parts  of  the  same  contract. 

So,  in  Danar.  King,  2  ib.  155,  where  the  defendant  agreed  in  writing 
to  buy  of  the  plaintiff  within  a  certain  time  a  certain  number  of  shares 
in  the  U.  S.  Bank,  and  the  plaintift'  agreed  to  sell  :  the  price  to  be  paid 
when  the  shares  should  be  transferred  :  held,  that  the  plaintiff  could  not 
maintain  an  action  for  the  money,  without  averring  and  proving  that  he 
had  offered  to  do  what  belonged  to  him  to  perform.  And  a  clause  in  the 
agreement  providing  as  to  payment  of  the  purchase-money,  "  which 
payment  and  transfer  are  to  be  made  at  any  time  after  one  month  and 
within  one  year  as  aforesaid,  at  the  option  and  request  of  the  defendant 
or  his  assigns,  he  or  they  giving  the  plaintiff  one  week's  notice  to  do 


THE  CONTRACT.  299 

conveyance.  In  the  early  case  of  Webb  v.  Bettel(5),  the 
same  rule  was  expressly  recognized  by  Windham,  J.  and 
denied  by  no  one.  He  said,  "  that  where  a  person  is  to 
execute  a  conveyance  generally,  there  the  counsel  of  the 
purchaser  is  intended  to  draw  it,  and  then  the  purchaser 
ought  to  tender  it. 

It  is  settled,  that  if  a  conveyance  is  to  be  prepared  at 
the  expense  of  a  purchaser,  he  is  bound  to  tender  '\t(t). 
Now  it  is  admitted  on  all  hands,  that  the  expense  of  the 
conveyance  must  be  borne  by  the  purchaser,  if  there  be 
no  express  stipulation  to  the  contrary.  Therefore,  where 
there  is  no  such  stipulation,  the  purchaser  is  bound  to 
tender  the  conveyance. 

Upon  the  wdiole,  notwithstanding  the  recent  dicta  to 
the  contrary,  as  the  precise  point  came  before  the  Court  of 
Exchequer,  in  Baxter  v.  Lewis,  and  their  decision  accords 
with  the  uniform  practice  of  conveyancers,  which  has 
always  met  with  the  greatest  attention  in  courts  of  jus- 
tice(w),  we  may  be  warranted  in  saying,  that  the  pur- 
chaser, and  not  the  vendor,  ought  to  prepare  and  tender 
the  conveyance. 

(«)   1  Lev.  44. 

{t)  Seward  v.  Willock,  5  East,  198. 

<«)  See  2  Atk.  208  ;   1  Term.  Rep.  772 ;  Wilmot,  218. 

the  same,"  did  not  vary  the  case.  "  If  the  defendant  did  not  request 
the  transfer  till  within  a  week  before  the  expiration  of  the  year,  the 
plaintiff  should  then,  or  perhaps  any  time  before  the  year  expired,  have 
offered  to  transfer  the  stock.  Not  having  done  that  both  parties  have 
suffered  the  contract  to  die."  The  case  of  Collins  v.  Gibbs,  is  decisive 
upon  this  point. 

But  where  a  party  has  performed  his  contract  in  part,  and  has  been 
prevented  by  inevitable  accident  from  fulfilling,  he  is  entitled  to  com- 
pensation for  the  part  performed,  on  an  implied  promise.     4  Pick.  101. 

(*243) 


^QQ  OF  THE  consequencp:s  of 

If  the  purchaser  is  required  by  the  agreement  to  prepare 
(*)the  conveyance,  it  is  clear  that  the  vendor  may  maintain 
an  action,  or  file  a  bill,  without  tendering  a  conveyance(a:)  ; 
and  therefore,  to  prevent  all  doubt  on  this  point,  it  seems 
advisable  to  stipulate  in  the  agreement  or  conditions  of 
sale,  that  the  conveyance  shall  be  prepared  by,  and  at  the 
expense  of,  the  purchaser.  A  purchaser  must,  how^ever, 
prepare  the  conveyance,  although  it  is  merely  declared 
that  the  conveyance  shall  be  at  his  expense(^). 

But  although  a  purchaser  is  expressly  required  to  pre- 
pare a  conveyance,  yet  if  a  bad  title  be  produced,  he  may 
maintain  an  action  for  recovery  of  his  deposit,  without 
tendering  a  convey ance(2).  So  where  a  vendor  has,  by 
selling  the  estate,  incapacitated  himself  from  executing 
a  conveyance  to  the  first  purchaser,  that  renders  further 
expense  and  trouble  on  his  part  unnecessary ;  and  he  may 
accordingly  sustain  an  action  without  tendering  a  convey- 
ance, or  the  purchase-money («). 

Although  a  seller's  bill  for  a  specific  performance  be 
dismissed,  yet  he  may,  in  general,  still  bring  his  action  at 
law  for  breach  of  the  agreement ;  and  there  are  instances 
of  sellers  recovering  damages  in  such  cases.  Where 
the  Court  refuses  its  interference,  and  yet  thinks  that  the 
seller  is  entitled  to  enforce  his  contract  at  law,  it  is  usual 
to  add  a  declaration  to  the  decree,  dismissing  the  bill, 
that  it  is  without  prejudice  to  the  plaintiff's  remedy  at 
law.  Where  such  a  declaration  is  not  added,  equity  will 
restrain  the  seller    from    bringing  an  action  in  a  proper 

(.v)   Hawkins  v.  Kemp,  3  East,  410. 

(i/)    Seward  v.  Willock,  5  East,  198. 

(z)  Seward  v.  Willock,  tibi  snp.  ;  S.  P.  ruled  by  Lord  Ellenborough, 
C.  J.  in  Lowndes  v.  Bray,  Silt,  after  T.  T.  1810. 

(a)  Knight  v.  Crockford,  1  Esp.  Ca.  184.  See  Duke  of  St.  Alban's 
V.  Shore,  1  H.  Black.  270. 

(*248) 


J 


THE  CONTRACT.  3Q| 

case ;  for  example,  where  the  bill  was  dismissed  because 
the  seller  had  no  title(6). 

(*)Where  a  purchaser  is  let  into  possession  on  a  treaty 
for  purchase,  he  does  not  become  tenant  to  the  seller  ; 
and  if  the  seller  cannot  make  a  title,  it  is  doubtful  whether 
an  action  will,  under  any  circumstances,  lie  against  the 
purchaser.  It  is  settled  that  the  action  will  not  lie  where 
the  occupation  has  not  been  beneficial  to  him(f:),  beyond 
the  mere  protection  from  the  inclemency  of  the  weather, 
and  if  he  paid  the  money,  of  which  the  seller  might  have 
made  interest,  although  the  jury  expressly  find  that  the 
value  of  the  house,  during  the  occupation  of  the  purchaser, 
exceeds  the  interest  ot  the  money  paid,  yet  the  seller 
cannot  recover(f/) ;  for  it  is  impossible  to  make  the  rules 
of  law  depend  on  the  balance  of  loss  or  gain  in  each 
transaction  :  one  party  must  take  back  his  money,  and  the 
other  take  back  his  house.  A  contract  cannot  arise  by 
implication  of  law,  under  circumstances,  the  occurrence 
of  which  neither  of  the  parties  ever  had  in  their  contem- 
plation. 

But  as  the  possession  is  in  these  cases  lawful,  being 
with  the  assent  of  the  seller,  an  ejectment  will  not  lie 
against  the  purchaser  without  a  demand  of  possession, 
and  refusal  to  quit(e)  ;  unless  upon  possession  being  given 
to  him,  he  agreed  to  quit  possession  if  he  should  not  pay 
the  purchase-money  on  a  given  day,  or  the  like  ;  in  which 
case  an  ejectment  will  lie,  without  notice,  on  non-per- 
formance of  his  agreement.     The  agreement  operates  in 

(&)  M'Narnara  v.  Arthur,  2  Ball  &  Beat.  349. 

(c)  Hearne  v.  Tomlin,  Peake's  Ca.  192. 

{d)   Kirtland  v.  Pounsett,  2  Taunt.  46. 

(e)  Doe  V.  Jackson,  1  Barn.  &  Cress.  448  ;  Right  r.  Beard,  13 
East,  210.  See  Hegan  v.  Johnson,  2  Taunt.  148;  Doe  v.  Lawder,  1 
Stark.  308 ;  Doe  r.  Boulton,  1  Mood.  &  Malk.  148 ;  Doe  v.  Waller, 
1  Carr.  &  Payn.  695. 

(*249) 


gQ2  OF  THE  CONSEQUENCES  OF 

the  same  manner  as  a  clause  of  re-entry  on  breach  of  cov- 
enant in  a  lease(/)(160). 

(/)  Doe  V.  Sayer,  3  Camp.  Ca.  8.  The  same  doctrine  is  extended 
to  an  ao-reement  for  a  lease,  Doe  v.  Smith,  6  East,  630  ;  Doe  r.  Breach, 
6  Esp.  Ca.  106. 

(160)  In  Pennsylvania,  an  action  for  the  purchase-money  produces  the 
same  fruit  as  a  bill  in  equity  ;  for  there  it  is  the  only  resort  of  carrying 
the  contract  into  full  efiect ;  permitting  the  defendant,  under  the  plea  of 
payment,  to  give  in  evidence  every  circumstance  which  vi^ould  influence 
a  chancellor  on  a  bill  for  specific  performance.  In  Huber  v.  Burke, 
(11  S.  &  R.  238.)  which  was  debt  to  recover  the  penalty  in  articles  of 
agreement ;  and  held,  that  in  that  action  the  vendor  may  go  for  dama- 
ges only,  and  retain  the  land  ;  in  which  case  the  breach  must  be  assign- 
ed exactly  in  the  same  way  as  where  he  would  go  for  the  purchase-mo- 
ney, if  that  were  permitted  him.  But  to  permit  him,  said  the  Court, 
Gibson  J.,  to  go  either  for  damages  or  the  purchase-money,  accord- 
ing to  the  case  he  might  be  able  to  make  out,  would  involve  the  absurd- 
ity of  an  arbitrary  discretion  in  the  jury,  to  hold  the  vendee  to  the  bar- 
gain, or  absolve  him  from  it,  on  payment  of  a  compensation  in  dam- 
ages ;  which  it  was  determined  in  Witman  v.  Ely,  4  S.  &  R.  266,  they 
cannot  exercise.  The  vendor  ought  therefore  to  count  specifically  for 
the  purchase-money  as  such.  That  may  be  done  in  an  action  of  debt, 
directly  on  the  covenant  to  pay,  by  setting  out  the  covenant,  perform- 
ance on  his  own  part,  and  failure  on  the  part  of  the  vendee,  and  con- 
cluding in  the  usual  form.  Debt  on  covenant  may  be  supported  at  com- 
mon law  ;  but  he  is  not  entitled  to  recover  the  whole  purchase-money, 
if  there  be  incumbrances  remaining ;  for  the  vendee  should  be  in  a 
condition  to  tender  a  title,  at  least  before  suit  brought.  Damages, 
therefore,  and  not  the  price  of  the  land,  are  the  legitimate  fruit  of  an 
action  in  this  form.  But  in  the  case  of  Cassell  v.  Cooke,  8  S.  &  R. 
268,  it  was  held,  that  a  defendant  was  not  entitled  to  reduce  the  pur- 
chase-money sued  for  by  proof  of  special  damage  sustained  by  reason 
of  the  deed  not  being  delivered  to  him  on  the  day  stipulated,  without  first 
showing  that  he  offered  to  pay  the  purchase  money. 

The  law  would  seem  to  be  settled  in  Pennsylvania  from  the  case  of 
Steinhauer  v.  Witman,  1  S.  &  R.  438  to  the  present  time,  that  a  ven- 
dee may  avail  himself  of  a  defence  against  paying  the  purchase-money, 
founded  on  defect  of  title,  even  where  he  had  accepted  of  a  conveyance 
with  special  warranty  only.  And  in  Hart  v.  Porter,  5  S.  &  R.  201,  it 
was  held,  that  a  defendant  who  is  sued  for  the  purchase-money  may  de- 


THE  CONTRACT. 


303 


A  writ  of  ne  exeat  regno  lies  against  a  purchaser 
(*)who  has  not  paid  the  purchase-money,  upon  his  threat- 
ening to  go  abroad,  if  the  vendor's  title  has  been  accept- 
ed(^),  or  there  has  been  a  decree  for  a  specific  perform- 
ance after  the  title  has  been  investigated(/i).  But  although 
the  purchaser  has  taken  possession  of  the  property,  and 
received  the  rents  after  the  delivery  of  the  abstract,  yet 
the  writ  cannot  issue  ;  for  unless  the  Court  can  make  it 
out  to  be  quite  clear  that  there  must  be  a  specific  per- 
formance, it  cannot  grant  the  writ(z). 

If  a  man  convey  his  estate  to  trustees  to  sell  and  pay 
debts,  and  afterwards  file  a  bill  to  stop  the  sale,  on  the 
ground  that  the  trustees,  by  giving  shorter  notice  of  the 
intended  sale  than  was  usual,  and  other  circumstances, 
would  materially  injure  the  sale,  the  Court  will  not  grant 
an  injunction  upon  the  filing  of  the  bill  to  restrain  the  sale, 
although  it  is  sworn  that  the  sale  is  to  be  made  the  next 
day.  It  is  not  one  of  those  cases  in  which,  on  account  of 
irreparable  injury  to  the  plaintiff,  the  Court  proceeds  in 
this  summary  way.     If  the  trustees  shall  be  guilty  of  a 

(g)  Goodwin  V.  Clarke,  2  Dick.  497  ;  and  Anon,  ibid,  note  ;  see 
Jackson  v.  Petrie,  10  Ves.  jun.  164. 

(/i)   Boehm  v.  Wood,  1  Turn.  &  Russ.  332. 
(t)  Morris  v.  M'Neil,  2  Russ.  604. 

fend  himself  on  account  of  a  defect  in  the  title,  though  there  be  no  cov- 
enants on  which  he  can  have  recourse  ;  and  in  a  case  where  there  has 
been  no  eviction.  Tilghman,  C.  J.  concluded  his  judgment  of  the 
court  thus  : — "  Considering  then,  that  it  was  decided  in  Steinhauer  r. 
Witman,  that  a  purchaser  not  having  paid  his  money,  may  defend  him- 
self under  a  defect  of  title,  where  part  of  his  purchase  has  been  evicted, 
although  he  has  accepted  of  a  conveyance  with  no  more  than  special 
warranty,  and  considering  that  where  there  has  been  no  eviction,  it  would 
be  against  equity,  to  compel  payment  of  the  whole  purchase-money,  for 
a  defective  title."  It  is  to  be  understood,  that  this  opinion  is  confined  to 
the  case  of  a  purchaser  who  has  no  covenants  on  which  he  can  have  re- 
course to  the  seller.     7  ib.  43. 

(*250) 


3Q4  OF  THE  CONSEQUENCES  OF 

breach  of  trust  in  making  the  proposed  sale,  they  will  be 
answerable  to  the  plaintiff  for  the  damage  sustained (/c). 

Where  a  man  sells  an  estate  for  an  annuity,  without  any 
agreement  being  made  respecting  the  security  to  be  given 
for  it,  he  is  entitled  to  have  it  secured,  not  only  upon  the 
estate,  but  also  by  the  bond  of  the  purchaser,  and  a 
judgment  to  be  entered  up  against  him(/).  In  Ker  v. 
Clobery(m),  which  came  before  the  Court  upon  a  peti- 
tion between  the  heir  and  executor,  it  appeared  that  the 
(*)equity  of  redemption  was  sold  to  the  mortgagee  for  the 
mortgage-money,  and  a  life-annuity  to  be  paid  to  the 
seller  and  his  wife,  and  the  survivor  of  them,  but  nothing 
was  said  as  to  the  mode  in  which  the  annuity  was  to  be 
secured.  It  w^as  held  to  be  a  purchase  of  the  equity  of 
redemption,  subject  to  the  annuity,  which  ought  to  be 
charged  on  the  estate.  It  was  an  interest  reserved  by  the 
seller  out  of  the  estate. 

A  purchaser  of  an  estate  subject  to  incumbrances  must 
indemnify  the  vendor  against  them,  although  he  did  not 
expressly  engage  to  do  so. 

Thus  a  purchaser  of  a  leasehold  estate  must  covenant 
with  the  vendor  to  indemnify  him  against  the  rents  and 
covenants  in  the  lease,  although  he  is  not  required  to  do 
so  by  the  agreement  for  sale(n). 

So,  although  a  purchaser  of  an  equity  of  redemption 
enter  into  no  obligation  with  the  party  from  whom  he 
purchases,  to  indemnify  him  from  the  mortgage-money, 
yet  equity,  if  he  receives  the  possession,  and  has  the  pro- 
fits, would,  independently  of  contract,  raise  upon  his  con- 
science an  obligation  to  indemnify  the  ^vendor  against  the 
personal  obligation  to  pay  the  mortgage-money;  for  hav- 

(k)  Pechellr.  Fowler,  2  Anstr.  560. 

(/)  Remington  v.  Deverall,  2  Anstr.  650. 

(m)  V.  C.  27  Mar.  1819,  MS, 

(»)  Pember  v.  Mathers,  1  Bro.  C.  C.  62,  et  supra,  p.  38. 

(*251) 


THE  CONTRACT. 


305 


ing  become  owner  of  the  estate,  he  must  be  supposed  to 
intend  to  indemnify  the  vendor  against  the  mortgage(o). 

And  if  a  purchaser  who  has  not  obtained  a  conveyance 
sell  to  another,  the  second  purchaser  is,  without  entering 
into  a  covenant,  bound  to  indemnify  him  against  any  costs 
incurred  in  proceedings  for  his  beneiit(p). 

If  a  seller  agree  to  give  a  real  security  as  an  indemnity 
to  a  purchaser  upon  his  accepting  the  title,  he  will  be 
compelled  specifically  to  perform  it,  although  he  has  not 
(*)sufficient  real  estate,  and  offers  a  sufficient  security  up- 
on personal  estate. (</). 

It  seems  that  where  a  mortgagor  has  agreed  to  convey 
his  equity  of  redemption  to  the  mortgagee,  the  proceed- 
ings in  an  ejectment  by  the  mortgagee  cannot  be  stopped 
under  the  7  Geo.  2,  c.  20,  for  the  effect  of  it  would  be  to 
strip  the  mortgagee  of  his  legal  title,  which  might  let  in  a 
posterior  equitable  right  to  the  prejudice  of  the  mort- 
gagee, though  he  should  thereafter  obtain  a  decree  for  the 
performance  of  the  agreement(r).  But  the  relief  will  be 
granted  to  the  mortgagor,  where  the  mortgagee  has  not 
taken  any  steps  to  complete  his  contract  for  the  purchase 
of  the  equity  of  redemption(5.) 

A  purchaser  of  an  estate  let  to  a  tenant  from  year  to 
year  may,  without  a  new  contract,  or  any  act  correspond- 
ing to  attornment,  recover  the  rent ;  and  nothing  would  be 
a  good  defence  in  an  action  brought  for  it  but  the  fact  that 
he  did  not  know  of  the  sale,  and  had  paid  his  rent  before 
to  his  lessor(i).     So,  if  the  estate  is  in  lease,  the  purchas- 

(o)  See  7  Ves.  jun.  337,  per  Lord  Eldon  ;  see  Crafts  v.  Tritton,  8 
Taunt.  365;  2  Moo.  411,  S.  C. 

(p)    Per  Lord  Eldon,  in  Wood  r.  Griffith,  12  Feb.  1818,  MS. 

(9)  Walker  v.  Barnes,  3  Madd.  247. 

(r)  Goodtitle  v.  Pope,  7  Term  Rep.  185. 

(s)  Skinner  r.  Stacy,  I  Wils.  80. 

(t)  See  1  Vern.  &  Scriv.  289 ;  Birch  v.  Wriglil,  1  Term  Rep.  378. 
See  Lumley  v.  Reisbeck,  16  Ea?t,  99. 

VOL.  1.  39  (*252) 


OQg  OF  THE  CONSEQUENCES  OF 

er  is  entitled  to  the  benefit  of  covenants  entered  into  by 
the  lessee  with  the  vendor(w),  and  may  recover  for  a 
breach  of  the  covenants  before  his  time,  if  he  is  seized  of 
the  reversion  during  the  continuance  of  the  term(:r)  ;  and 
he  may,  after  notice  to  the  tenant  of  the  conveyance,  dis- 
train for  rent  in  arrear(?/),  whether  the  estate  be  freehold 
or  leasehold(I). 

(u)   See  post,  ch.  13,  sect.  1,  n.  (1). 

{:r)  Davis's  case,  M.  T.  42  Geo.  IIL  Woodfall's  Land,  and  Ten. 
529,  2d  edit. 

(y)  See  Moss  i\  Gallimore,  Dougl.  259 ;  Pope  v.  Biggs,  9  Barn.  & 
Cress.  245  ;  4  Man.  &  R.  193,  S.  C. 


(I)  It  was  recently  proposed  to  deprive  all  middle-men,  even  in 
England,  of  the  right  to  distrain  tor  rent  in  arrear.  Thus,  suppose  a 
building  lease  to  be  granted  by  John  to  James  fw  ninety-nine  years, 
at  10/.  a  year ;  James  builds  a  valuable  house,  and  underlets  to  Joseph,, 
for  forty  years,  at  100/.  a  year;  and  Joseph  underlets  to  Jacob,  for 
thirty  years,  at  120/.  a  year;  it  is  manifest  that  James  hus  the  greatest 
interest  in  the  property ;  and,  as  the  law  now  appears  to  stand,  he 
can  distrain  for  his  rent,  notwithstanding  the  last  underlease.  This 
right  was  proposed  to  be  taken  from  him,  but  the  measure  wa» 
dropped. 

In  support  of  the  measure,  it  was  contended,  that  none  but  the  original 
essor  is  entitled  to  distrain  for  rent,  according  to  the  law  of  England; 
and  therefore  that,  in  the  case  which  I  have  put,  James  would  not  be 
affected  by  the  act ;  because  he  would  not,  as  the  law  now  stands,  be 
entitled  to  distrain.  The  argument,  which  was  managed  with  great  in- 
genuity, was  rested  upon  the  statute  of  quia  emptores,  and  some  passages 
in  Coke  upon  Littleton.  When  it  is  considered,  that  the  right  of  distress,, 
in  the  case  above  supposed,  has  never  been  disputed,  it  will  not  be  mat- 
ter of  surprise,  that  the  attempt  to  show  that  the  practice  is  illegal  did 
not  succeed.  That  rent  may  be  distrained  tor,  although  fealty  is  not 
incident  to  it,  is  laid  down  in  Co.  Litt.  142,  b. ;  and  it  seems  to  be  clear, 
that  distress  is  incident  to  every  rent  at  common  law,  where  the  lessor 
has  a  reversion  :  and  that  a  reversion  of  a  single  day  is,  for  this  purpose, 
as  operative  as  a  reversion  in  fee.  In  the  year-book,  14  Edvv.  III.  p.  8. 
Finchden  thought,  that  if  a  lessee  leased  all  his  estate  rendering  rent,  he 
could  not  distrain;  he  had  no  reversion.  In  the  2d  Edw.  IV.  p.  11,  the 
very  objection  was  taken,  where  the  lessor  had  a  reversion ;  because  it 
was  only  the  reversion  of  a  chattel ;  but  it  was  held,  that  he  had  a  right 


THE  CONTRACT. 


307 


(*)If  a  person  having  a  right  to  an  estate,  purchase  it  of 
another  person,  being  ignorant  of  his  own  title,  equity 
(*)win  compel  the  vendor  to  refund  the  purchase-money, 
with  interest  from  the  time  of  bringing  the  bill,  although 
no  fraud  appear(2)(161). 

(z)  Bingham  v.  Bingham,  1  Ves.  126.  See  Lansdown  v.  Lans- 
down,  Mose.  364  ;  Saunders  v.  Lord  Annesley,  2  Scho.  &  Lef.  101  ; 
Leonard  v.  Leonard,  2  Ball  &  Beatty,  171. 

to  distrain.  In  Brooke's  Abridgment,  Distress,  case  45,  and  Rents, 
case  17,  it  is  laid  down,  on  the  authority  of  this  case,  that  if  a  man 
lease  for  twenty  years,  and  the  lessee  leases  over  for  ten  years,  render- 
ing rent,  there,  if  he  grant  the  rent  over  to  another  man,  he  cannot 
distrain  ;  because  he  has  not  the  reversion  of  the  term,  which  gives 
the  right  to  distrain  :  contrary,  if  he  had  granted  to  him  the  reversion 
and  the  rent.  Note  the  diversity.  In  Wade  v.  Marsh,  Latch,  211,  it 
was  held,  that  the  lessor  having  only  a  reversion  for  years,  may,  by  the 
common  law  distrain  for  the  rent,  by  reason  of  the  reversion,  which 
causes  privity.  These  cases  appear  to  be  quite  decisive.  The  only 
difficulty  has  been  to  find  a  case  ;  for  the  point  has  not  been  doubted 
for  centuries.  It  is  to  be  hoped,  therefore,  that  the  right  of  mesne 
landlords  to  distrain  for  rent  will  not  be  violated,  on  the  ground  that  it 
depends  upon  a  practice  not  sanctioned  by  law,  and  which  ought  to  be 
abolished  ;  but  if  it  shall  appear,  as  it  is  alleged,  that  the  remedy  has 
been  the  source  of  great  oppression  against  the  tenantry  of  Ireland, 
the  Legislature  will,  I  confidently  hope,  extend  its  protection  to  so 
valuable  a  race  of  men,  as  far  as  may  be  consistent  with  a  due  regard 
to  the  rights,  of  landlords  :  for,  as  Justice  Twisden  observed,  we  musj 
not  steal  leather  to  make  poor  men's  shoes. 


(16!)  The  case  of  Lawrence  v.  Beaubien,  2  Bailey's  S,  C.  R.  623, 
decided  that  a  mistake  of  law  was  a  ground  of  relief  from  the  obliga- 
tions of  a  contract,  by  which  one  party  acquired  nothing,  and  the  other 
neither  parted  with  any  right,  nor  suffered  any  loss,  and  which  ex  aequo 
el  bono  ought  not  to  be  binding  ;  and  it  made  no  difference,  that  the 
parties  were  fully  informed  of  the  fads,  and  the  mistake  as  to  the  law 
was  reciprocal.  But  the  evidence  should  show  a  palpable  mistake,  and 
not  mere  ignorance  of  the  law.  The  mere  compromise,  however,  of  a 
doubtful  right  will  not  be  a  ground  of  setting  aside  the  contract.  John- 
son, J.  said  "  it  was  well  remarked  in  Fletcher  v.  Toilet,  5  Ves.  14, 
that   'ignorance  is  not  mistake.'  "  In  Shotwell  v.  Murray,*  1  J.  Ch.  512, 

(*253)    (*254) 


gQg  OF  THE  conseql"ENc;es  of 

So  where  a  person  sold  a  remainder  expectant  upon  an 
estate-tail,  and  both  parties  considered  that  the  remainder 
was  unbarred,  and  it  afterwards  appeared  that  a  recovery 
had  been  suffered  before  the  contract,  the  purchaser  was 
relieved  against  a  bond  which  he  had  given  for  the  pur- 
chase-money, and  the  seller  was  compelled  to  repay  the' 
interest  which  he  had  received(«).  This  was  a  strong 
decision.  The  purchaser  might  have  ascertained  the  fact 
by  search.  The  Chief  Baron  laid  down  some  very  ge- 
neral propositions.  His  Lordship  said,  "  that  if  a  person 
sell  an  estate,  having  no  interest  in  it  at  the  time,  and 
takes  a  bond  for  securing  the  payment  of  the  purchase- 
money,  that  is  certainly   a  fraud,   although  both  parties 

(a)   Hitchcock  v.  Giddings,  4  Price,  135. 

and  Ijyon  r.  Richmond,  2  ib.  56,  Chancellor  Kent  seems  to  have  adopt- 
ed the  cases  of  Bilbie  v.  Lumley,  2  East,  469  and  Brisbane  v.  Dacres, 
5  Taunt.  R.  143,  as  an  authority  upon  the  point,  but  neither  of  these 
cases  turned  upon  the  precise  point.  In  the  first,  the  mistake  was  in 
relation  to  a  collateral  matter  ;  and  the  last  was  judicium  red  ditum  in 
invitum.  The  learned  judge  after  citing  Lansdown  v.  Lansdown, 
Mosely,  364;  Bingham  v.  Bingham,  1  Ves.  Sen.  126;  and  the  dicta 
of  Ch.  J.  De  Grey,  2  Wm.  Bl.  825,  Lord  Mansfield  in  Bize  v.  Dicka- 
son,  1  Term,  286  in  support  of  his  position  :  then  proceeded  to  the  case 
of  Hunt  V.  Rousmanier,  8  Wheat.  R.  215  in  which  Chief  J.  Marshall 
remarks,  that  '*  although  we  do  not  find  the  naked  principle,  that  relief 
may  be  granted  on  account  of  ignorance  of  the  law  asserted  in  the 
books,  we  find  no  case  in  which  it  has  been  decided,  that  a  plain  and 
acknowledged  mistake  in  law  is  beyond  the  reach  in  equity."  And  in 
remarking  on  the  case  of  Lansdown  v.  Lansdown,  he  observes,  that  al- 
though objectionable  in  other  respects;  "yet,  as  a  case  in  which  relief 
has  been  granted  on  a  mistake  in  law,  it  cannot  be  entirely  disregard- 
ed." And  although  the  case  of  Hunt  v.  Rousmanier  ultimately  turned 
upon  another  question,  see  1  Pet.  1,  it  shows  very  clearly  the  opinion 
of  that  great  jurist.  See  the  argument  of  the  learned  editor  of  Pothier, 
2  Evans  Poth.,  app.  '269.  "  For  myself,  I  have  no  hesitation  incoming 
to  the  conclusion,  that  contracts,  founded  on  a  plain  and  palpable  mis- 
take of  the  law,  t>om  a  known  state  of  facts,  and  capable  of  proof,  ought 
not  to  be  enforced.     O'Neal!,  .J.  concurred. 


THE  CONTRACT.  gQ9 

should  be  ignorant  of  it  at  the  time(6).  Suppose  I  sell 
an  estate  innocently,  which  at  the  time  is  actually  swept 
away  by  a  flood,  without  my  knowledge  of  the  fact,  am 
I  to  be  allowed  to  receive  5,000/.  and  interest,  because 
the  conveyance  is  executed,  and  a  bond  given  for  that 
sum  as  the  purchase-money,  when,  in  point  of  fact,  I  had 
not  an  inch  of  the  land  so  sold  to  sell(c)  ?"  Both  these 
cases,  when  they  arise,  will,  it  is  apprehended,  deserve 
(*)great  consideration  before  they  are  decided  in  the  pur- 
chaser's favor.  The  decision  must  be  the  same,  whether 
the  money  is  actually  paid  or  only  secured(6/)(I)(162). 

(6)  But  see  2  Cro.    196;  2  Ld.  Raym.  1118;   1  T.  Rep.  755;  2 
Freeni.  106  ;  and  post,  ch.  9,  s.  6. 
(c)  See  ch.  6,  s.  2,  post. 
{d)  See  post,  ch.  9,  s.  6. 

(I)  In  a  late  case  before  Lord  Eldon,his  Lordship  expressed  consider- 
able doubt  upon  the  doctrines  in  the  case  in  the  Exchequer. 

(162)  The  principle  asserted  in  the  text,  seems  to  rest  upon  the 
ground  that  the  maxim  ignoraniiu  juris  ??on  exci/sa/,  is  applicable  only  in 
the  administration  of  criminal  law.  In  Lansdown  v.  Lansdown,  cited 
ut  svpra,  the  Lord  Chancellor  says,  "  That  Maxim  of  law,  ignorantia 
jtiris  non  exciisat,  was  in  regard  to  the  public,  that  ignorance  cannot  be 
pleaded  in  excuse  of  crimes,  but  did  not  hold  in  civil  cases."  See 
Levy  V.  Bank  U.  S.  1  Binn.  27,  37.  ace.  ut  semb.  But  a  contrary  doc- 
trine was  held  by  Chancellor  KENT  in  Lyon  v.  Richmond,  2  Johns. 
Ch.  Rep.  51,  60.  "  The  courts"  he  says,  "  do  not  undertake  to  relieve 
parties  from  their  acts  and  deeds  fairly  done  on  a  full  knowledge  of 
facts,  though  under  a  mistake  of  the  law.  Every  man  is  to  be  charged 
at  his  peril,  with  a  knowledge  of  the  law.  There  is  no  other  principle 
which  is  safe  and  practicable  in  the  common  intercourse  of  mankind." 
See  also,  Shoiioell  v.  JSIurratj,  1  Johns.  Ch.  Rep.  616.  Storrs  v. 
Barker,  6  Jchns.  Ch.  Rep.  166. 

In  Haven  r.  Foster,  9  Pick  112,  where  the  plaintifl'  as  administrator 
on  an  estate  paid  over  to  the  defendant  by  mistake  of  the  laws  of  de- 
scent of  New  York  the  money  sought  to  be  recovered  back  in  this  ac- 
tion ;  held,  that  he  was  entitled  to  recover.  The  lex  loci  rei  sitae  must 
govern  the  descent  of  real  estate.  The  parties  knew  that  the  intestate 
died  spized  of  lands  in  New  York.     The  distribution  was  governed  by 

(*255) 


310  OF  THE  CONSEQUENCES  OF 

Where  a  policy  of  assurance  on  a  life  was  sold  by 
auction,  and  the  particulars  did  not  state  that  the  seller  - 
had  only  a  redeemable  interest  in  the  life  assured,  and 
the  interest  was  afterwards  redeemed,  it  was  held  that 
after  the  purchase  w^as  completed  the  purchaser  could 
not  recover  damages  for  the  fraud,  as  it  was  proved  that 
the  practice  of  the  office  was  to  pay  such  policies,  although 
of  course  there  was  no  legal  right  to  recover  under  the 
policy(e). 

If  a  lease  be  granted  with  power  to  the  lessee  to  cut 
and  sell  the  timber,  and  the  lessee  is  required  when  and  so 
often  as  he  intends  to  sell  the  timber,  or  any  part  thereof, 
to  give  notice  to  the  lessor  to  whom  the  pre-emption  was 
given  ;  the  lessee  having  a  bona  fide  mten\\on  to  cut  down 
all  the  timber,  may  give  a  general  notice  to  the  lessor, 
and  if  the  lessor  decline  to  purchase  the  timber,  the  lessee 
may  cut  it  down  at  intervals,  and  need  not  repeat  the 
notice(y^. 

A  bona  fide  purchase  of  an  interest  will  not  be  con- 
verted into  a  loan,  on  account  of  a  power  to  re-purchase 
being  given  to  the  seller,  although  at  an  advanced  price  ; 

(c)  Barber  t).  Morris,  2  Mood.  &  Malk.  62. 

(/)  Goodtitle  v.  Saville,  16  East,  87.  See  Doe  v.  Abel,  2  Mau.  & 
Selw.  541. 

the  laws  of  that  state.  The  statute  of  New  York  is  a  fact,  the  ignorance 
of  which  may  be  ground  of  repetition.  The  defendant  received  a  part 
of  the  [consideration  of  these  lands  by  mistake  in  a  matter  of  fact — 
the  law  of  New  York.  The  estate  in  New  York  was  under  mortgage  ; 
and  the  mortgage  was  satisfied  from  the  estate  itself.  The  heirs  agreed 
to  pay  off  the  mortgage  ;  and  the  plaintiff  supposing  he  owned  but  a 
quarter,  when  he  owned  half  made  the  agreement  in  respect  to  the  dis- 
tribution of  the  proceeds  of  these  lands.  The  agreement  was  founded 
in  mistake,  but  it  has  been  executed,  as  the  parties  cannot  be  restored 
to  the  situation  they  were  in  when  it  was  made,  and  as  the  effect  of  an- 
nulling to  one  would  work  injustice  to  another,  we  can  see  no  good  rea- 
son why  both  should   not  be  bound  by  it. 


THE  CONTRACT. 


311 


but,  if  the  purchaser,  instead  of  taking  the  risk  of  the 
subject  of  the  contract  (e.  g.  an  annuity)  on  himself, 
take  a  security  for  repayment  of  the  principal,  that  will 
vitiate  the  transaction,  and  render  it  a  mere  mortgage 
security(g)(163). 

(*)If  a  power  to  re-purchase  be  given  upon  a  condition, 
for  example,  that  rent  be  in  the  mean  time  regularly  paid, 
the  right  cannot  be  enforced  unless  the  condition  has 
been  complied  with,  for  it  is  not  a  stipulation  for  penalty 
or  forfeiture  but  a  privilege  conferred (^)(1 64). 

is)   Werner  v.  Winstanley,  2  Scho.    &   Lef.   393.     See  Sevier  v. 
Greenway,  19  Ves.  jun.  413. 

(/t)  Davis  V.  Thomas,  1  Russ.  &  Myl.  606. 

(163)  See    Jackson  v.    Green,   4   Johns.    Rep.    187.      Ershine  v. 
Totcnsend,2  Mass.  Rep.  493. 

(164)  The  principle  of  this  decision  was  recognized  in  the  late  case  of 
Robinson  v.  Cropsey  and  others,  2  Edward's  V.  Ch.  R.  138,  where  the 
question  was  as  to  the  effect  of  an  agreement.  It  appeared  that  one 
Sharp  and  the  complainant  had  joined  in  building  a  house  upon  two 
lots  of  land.  Sharp  and  wife  executed  a  conveyance  of  one  undivided 
moiety  of  said  lots  ;  and  also  of  a  moiety  of  two  other  lots.  A  con- 
sideration was  expressed,  but  not  then  paid.  Subsequently,  however, 
the  parties  agreed  under  their  hands  and  seals  thus  :  Sharp  was  to  con- 
vey to  the  complainant  the  whole  of  said  lots  with  four  other  lots,  free 
of  incumbrance,  except  a  mortgage,  which  the  latter  was  to  pay  : — in 
consideration  whereof  the  complainant  was  to  cancel  an  account  cur- 
rent ;  and  also  certain  mortgages  he  held.  Sharp  agreed  also  to  lease 
certain  lots  for  19  years  at  a  stipulated  rent.  The  agreement  also  gave 
to  Sharp  "  the  privilege  of  redeeming  said  house  and  lands  within  one 
year  for  a  sum  therein  mentioned.  In  pursuance  of  this  agreement, 
Sharp  executed  a  deed  conveying  the  other  four  lots  ;  and  the  com- 
plainant had  been  in  possession  since  that  time.  The  question  for  the 
couit  was  whether  this  was  a  conditional  sale  or  a  mere  mortgage 
transaction.  The  V.  Chan,  decreed  that  the  defendants,  as  the  repre- 
sentatives of  Sharp,  had  no  right  to  redeem  or  re-purchase  under  the 
the  agreement.  The  grounds  of  this  decision  were  that  the  relation 
of  debtor  and  creditor  did  not  remain  by  the  agreement ;  but  the  debt 
forming  the  consideration  of  the  conveyance  was  extinguished  by  the 
agreement ;  and  the  grantor  retained  the  privilege  of  refunding  the 
money  if  he  should  choose  to  do  it.     The  enquiry,  says  Chief  J.  Mar- 

(*256) 


312  OF  THE  CONSEQUENCES  OF 

Where  a  power  is  given  by  an  Act  of  Parliament  to 
purchase  the  estate  of  a  third  person  for  a  public  purpose, 
with  the  usual  provisions  for  ascertaining  its  value,  if 
the  terms  offered  are  not  accepted ;  the  party  empowered 
to  purchase,  if  he  give  a  regular  notice  to  purchase,  can- 
not withdraw  from  it,  but  will  be  compelled  to  take  the 
estate  (2). 

It  may  here  be  observed,  that  the  grant  of  the  office  of 
a  steward  of  a  manor  for  life  is  not  revoked  by  a  subse- 
quent sale  of  the  manor,  but  is  binding  on  the  purchaser ; 
although,  as  lord,  he  will  be  entitled  to  the  custody  of 
the  court-rolls.  In  purchasing  a  manor,  therefore,  the 
instrument  by  which  the  steward  was  appointed  should 
be  called  for.  This  is  a  precaution  which  has  never  been 
attended  to.(165). 

(t)  The  King  v.  Hungerford  Market  Company,  1  Nev.  &  Mann. 
112. 

shall  in  Conway's  executors  v.  Alexander,  7  Cranch,  218.  must  be, 
whether  the  contract,  in  the  specific  case,  is  a  security  for  the  repay- 
ment of  money  or  an  actual  sale.  If  a  mortgage  is  intended,  the 
mortgagee  must  have  a  remedy  against  the  person  of  the  debtor  :  if  this 
remedy  really  exists,  its  not  being  reserved  in  terms  will  not  affect  the 
case  ;  but  the  remedy  must  exist,  in  order  to  justify  a  construction 
which  overrules  the  express  words  of  the  instrument."  When  the 
mortgages,  &c.  were  cancelled,  they  were  extinguished  ;  and  by  the 
agreement  went  to  pay  the  consideration  money. 

(165)  Parsons  Ch.  J.  "  If  a  grantor  deliver  any  writing  as  his  deed 
to  a  third  person,  to  be  delivered  over  by  him  to  the  grantee  on  some 
future  event,  it  is  the  grantor's  deed  presently,  and  the  third  person  is 
a  trustee  of  it  for  the  grantee.  And  if  the  grantee  obtain  the  writing 
from  the  trustee  before  the  event  happen,  it  is  the  deed  of  the  grantor, 
and  he  cannot  avoid  it  by  the  plea  of  no7i  est  factum,  whether  generally 
or  specially  pleaded.  But  if  the  grantor  make  a  writing  and  seal  it,  and 
deliver  it  to  a  third  person,  as  his  writing  or  escrow,  to  be  by  him  deliv- 
ered to  the  grantee,  upon  some  future  event,  as  his  the  grantor's  deed  ; 
and  it  be  delivered  to  the  grantee  accordingly,  it  is  not  the  grantor's  deed 
until  the  second  delivery.  And  if  the  grantee  obtain  the  possession  of 
it  before  the  event  happen,  yet  it  is  not  the  grantor's  deed,  and  he  may 
avoid  it  by  pleading  non  est  factum. 


THE  CONTRACT. 


313 


But  if  the  deeds  are  delivered  to  a  person,  not  as  the  deeds,  but  as 
the  writings  of  the  grantor,  we  must  not  thence  conclude  they  are  void. 
Although  generally  an  escrow  takes  its  effect  from  the  second  delivery, 
yet  there  are  excepted  cases,  in  which  it  takes  effect,  and  is  considered 
the  deed  of  the  maker,  from  the  first  delivery.  The  exception  is  found- 
ed on  necessity,  ut  res  valeat.  If  a/eme  sole  seal  a  writing,  and  deliver 
it  as  an  escrow,  to  be  delivered  over  on  condition,  and  she  afterwards 
marry,  and  the  writing  be  then  delivered  over  on  performance  of  the 
condition,  it  shall  be  her  deed  from  the  first  delivery ;  otherwise  her 
marriage  would  defeat  it.  A.  delivers  a  deed,  as  an  escrow,  to  J.  S.  to 
deliver  on  condition  performed,  before  which  it  becomes  non  compos 
mentis  :  the  condition  is  then  performed,  and  the  deed  delivered  over ; 
it  is  good,  for- it  shall  be  A's.  deed  from  the  first  delivery.  Brook's 
Reading  on  the  st.  of  limitations,  p.  150.  Another  exception  is  in  3 
Co.  35  b.  36  a.  Lessor  makes  a  lease  by  deed,  and  delivers  it  as  an 
escrow,  to  be  delivered  over  on  condition  performed,  before  which  les- 
sor dies,  and  after  it  is  delivered  over  on  condition  performed  :  the  lease 
shall  be  the  deed  of  the  lessor  from  the  first  delivery.  There  is  also  a 
strong  exception  in  5  Co.  85.  If  a  man  deliver  a  bond  as  an  escrow, 
to  be  delivered  on  condition  performed,  before  which  the  obligor  or  ob- 
ligee dies,  and  the  condition  is  after  performed  :  here  there  could  be  no 
second  delivery,  yet  is  it  the  deed  of  the  obligor  from  the  first  delivery, 
although  it  was  only  inchoate  :  but  it  shall  be  deemed  consummate  by 
the  performance  of  the  condition.  Therefore  in  Wheelwright  v.  Wheel- 
wright, 2  Mass.  447,  where  the  statute  authorized  any  person  of  full  age 
seized  in  fee  tail  of  any  lands  by  deed  duly  executed  before  two  subscrib- 
ing witnesses,  acknowledged  and  registered  as  therein  provided,  for  a  good 
and  valuable  consideration  bona  fide  to  convey  such  lands  or  any  part 
thereof  in  fee  simple  to  any  person  capable  of  taking  and  holding  such 
estate ;  and  such  deed,  so  made,  executed,  acknowledged  and  register- 
ed shall  bar  all  estates-tail  in  such  lands,  and  all  remainders  and  rever- 
sions expectant  thereon.  In  this  case  the  deeds  were  executed  und  de- 
livered to  one  Wells,  not  as  the  deeds  of  the  grantor,  but  as  his  writings 
or  escrows,  to  be  delivered  as  his  deeds  by  Wells  to  the  grantee  on  his, 
the  grantor's  death.  The  Court  held,  that  the  deeds  must  take  their 
effect,  and  be  considered  as  the  deeds  of  the  grantor,  from  the  first  de- 
livery, the  grantor  being  dead  at  the  second  delivery. 

What  the  nature  of  the  delivery  was,  whether  absolute  or  conditional, 
and  the  intentions  of  the  parties  were,  are  questions  o(  fad  for  the  jury, 
to  be  determined  by  the  evidence.  Hatch  tJ.  Hatch,  9  Mass.  307.  In 
this  case,  (he  father  about  four  years  before  his  death,  signed,  sealed  and 

VOL.  I.  40 


314 


OF  THE  CONSEQUENCES  OF 


acknowledged  the  writings  which  were  produced  at  the  trial  as  his  deeds, 
and  which  purported  to  be  witnessed  as  deeds  delivered.  The  grantees, 
who  were  the  sons  of  the  grantor  were  not  privy  to  the  execution  ;  but 
the  writings  were  deposited  with  one  Turner,  to  be  kept  until  the  gran- 
tor's death,  and  then  to  be  delivered  to  the  grantees  ;  held,  that  the  sons 
should  hold  the  estate.  "^ 

In  Clark  v.  Gifford,  10  Wend.  R.  310,  where  there  was  no  absolute 
delivery  of  the  deed  ;  the  papers  were  deposited  with  a  third  person  to  be 
delivered  when  both  parties  should  direct :  held,  that  one  party  obtaining 
possession  of  a  writing  thus  deposited,  without  the  consent  of  the  other, 
cannot  be  permitted  to  enforce  it.  "  Take  these  deeds  and  keep  them  ; 
if  I  never  call  for  them,  deliver  one  to  Pamela,  and  the  other  to  Noble 
after  my  death  ;  if  I  call  for  them,  deliver  them  up  to  me."  The  Court 
held  that  the  reservation  of  a  power  to  countermand  the  delivery  over 
made  no  difference  ;  for  it  was  in  the  nature  of  a  testamentary  disposition 
of  real  estate,  and  was  revocable  by  ihe  grantor  during  his  life,  without  any 
express  reservation.  The  legal  operation  of  such  a  deed  is,  that  it  be- 
comes the  deed  of  the  grantor  presently  ;  that  the  third  person  is  the 
trustee  of  the  grantee  ;  but  the  title  is  consummate  in  the  grantee  by  the 
death  of  the  grantor  ;  and  the  deed  takes  effect  by  relation  from  the  first 
deUvery.     Belden  &  ai.  v.  Carter,  4  Day's  R.  66. 

Weston,  J.  3  Greenl.  R.  141.  "A  delivery  of  a  deed  may  be  by 
acts,  or  by  words ;  or  by  both.  It  may  be  delivered  by  the  party  who 
made  it,  or  by  any  other  person,  by  his  appointment  or  authority,  prece- 
dent or  assent  subsequent.  But  if  a  man  throws  a  writing  on  a  table, 
and  a  party  takes  it,  this  does  not  amount  to  a  delivery,  unless  it  be 
found  to  have  been  put  there,  with  intent  to  be  delivered  to  the  party. 
And  upon  the  same  principle,  if  the  maker  of  a  deed  avails  himself  of 
the  hand  of  the  party  for  whom  it  is  made,  merely  to  put  the  deed  in  a 
trunk,  desk  or  other  place  of  deposit,  within  the  control  of  the  maker, 
and  such  purpose  is  indicated  and  made  known  at  the  time,  there  is  no 
legal  delivery ;  no  act  being  done,  or  declaration  made  expressive  of  an 
intention  to  deliver." 

In  Austin  v.  Hall,  13  Johns.  285,  where  the  deed  was  duly  executed 
by  the  grantor,  in  his  life  time,  and  delivered  to  a  third  person,  to  be 
delivered  to  the  grantees  (sons  of  the  grantor)  in  case  the  grantor 
should  die  before  having  made  and  executed  his  will.  The  Court  con- 
sidered it  "  questionable  whether  this  deed  is  to  be  viewed  as  an 
escrow  ;  the  grantees  had  nothing  to  do,  on  their  part,  in  order  to 
make  the  deed  absolute,  which  is  usually  the  case  where  a  deed  is 
delivered  as  an   escrow.     The  delivery  here  was,  at  all  events,  condi- 


THE  CONTRACT. 


315 


tional,  and  to  become  absolute  upon  an  event  which  has  taken  place  ; 
and,  as  in  the  case  of  an  escrow,  the  deed  will  take  effect  from  the  first 
delivery. 

A  deed  delivered  at  the  register's  office,  in  the  absence  of  the  arantee, 
has  been  held  to  be  a  good  delivery  to  the  grantee  ;  if  he  afterwards 
assent  and  take  the  deed.  And  where  the  sheriff  lodged  the  deed  with 
the  clerk  of  the  court  for  the  use  of  the  purchaser  ;  he  having  paid  ihe 
price ;  these  proceedings  being  regular,  were  held  to  constitute  an 
incumbrance.  Chapel  v.  Bull,  17  Mass.  213.  The  man  who  executes 
a  mortgage  to  the  vendor  for  the  payment  of  the  purchase-money,  must 
be  presumed  to  have  accepted  the  conveyance.     14  S.  &  R.  299. 

In  Ward  v.  Winslow,  4  Pick.  518,  where  the  defendants,  being  insol- 
vent made  an  assignment  of  their  property,  in  trust  to  pay  creditors. 
The  bill  prayed  for  an  execution  of  the  trust  ;  but  the  defendants  in 
their  answers,  admitted  the  execution  of  the  deeds  ;  they,  however,  also 
said,  that  the  indenture  was  returned  to  them  to  obtain  the  signatures  of 
the  creditors  ;  for  the  intent  was  that  it  should  take  effect  only  when  a 
majority  in  interest  of  the  creditors  had  signed  it ;  And  having  subse- 
questly  compounded  with  their  creditors,  the  deed  was  annulled.  One 
part  was  found  in  the  hands  of  the  assignees  ;  another  in  the  hands  of 
the  creditors  ;  and  was  referred  to  in  the  adjustment  which  took  place 
between  certain  of  the  creditors  and  the  debtors.  The  Court  consider- 
ed "  Where  a  deed,  with  the  regular  evidence  of  its  execution  upon 
the  face  of  it,  is  found  in  the  hands  of  the  grantee,  the  presumption  is 
that  it  has  been  duly  delivered.  It  could  not  have  been  delivered  as  an 
escrow,  because  it  was  delivered  to  the  parties  ;  an  escrow  can  be  de- 
livered only  to  a  third  person.  It  could  not  have  been  delivered  to 
the  parties  conditionally,  to  take  effect  upon  the  happening  of  any  future 
contingency,  because  this  would  be  inconsistent  with  the  terms  of  the 
instrument  itself.  To  permit  parties  to  a  deed  purporting  to  be  absolute, 
to  show  by  parol  evidence  that  it  was  conditional,  and  to  avoid  it  for  a 
non-performance  of  the  condition,  would  be  not  only  a  violation  of  the 
fundamental  rules  of  evidence,  but  productive  of  great  injustice  and 
mischief." 


[  316  ] 
(*)CHAPTER  V, 

OF    THE    CONSIDERATION. 

SECTION  I. 
Of  unreasonable  and  inadequate   Considerations. 


I.  It  seems  that  a  court  of  equity  cannot  refuse  to 
assist  a  vendor  merely  on  account  of  the  price  being  un- 
reasonable(a)  :  and  a  specific  performance  will  certainly 
be  enforced,  if  the  price  was  reasonable  at  the  time  the 
contract  was  made,  how  disproportionable  soever  it  may 
afterwards  become(l 66). 

If,  however,  a  man  be  induced  to  give  an  unreasonable 
price  for  an  estate,  by  the  fraud (&)(  167),  or  gross  misrep- 
resentation(c),  of  the  vendor ;  or  by  an  industrious  con- 

(a)  City  of  London  v.  Richmond,  2  Vern.  421  ;  Hanger  v.  Eyles,  2 
Eq.  Ca.  Ab.  689  ;  Hicks  t'.  Philips,  Prec.  Cha.  575  ;  21  Vin.  Abr.  (E), 
n.  to  pi.  1  ;  Keen  v.  Stukeley,  Gilb.  Eq.  Rep.  155 ;  2  Bro.  P.  C.  396  ; 
Charles  v.  Andrews,  9  Mod.  151  ;  Lewis  v.  Lord  Leechmere,  10  Mod. 
503  ;  Saville  v.  Saville,  1  P.  Wms.  745  ;  Adams  v.  Weare,  1  Bro.  C. 
C.  567 ;  and  the  cases,  as  to  inadequacy  of  price,  cited  infra. 

{h)  See  James  v.  Morgan,  1  Lev.  Ill,  a  case  at  law.  Conway  i'. 
Shrimpton,  5  Bro.  P.  C.  last  edit.  187. 

(c)  Buxton  V.  Cooper,  3  Atk.  383. 

(166)  See  Osgood  v.  Franklin,  2  Johns.  Ch.  Rep.  1,  23.  The  same 
case  was  affirmed  on  appeal.     14  Johns.  Rep.  627. 

(167)  Fraud  will  vitiate  any  contract  :  No  rule  of  law  is  more  uni- 
versal than  this.     See  Wilson  v.  Force,  6  Johns.  Rep.  110. 

{*257) 


OF  THE  CONSIDERATION.  gj-y 

cealmeiit  of  a  defect  in  the  estate(f^),  equity  will  not  com- 
pel him  to  perform  the  contract. 

And  where  these  circumstances  do  not  appear,  but  the 
estate  is  a  grossly  inadequate  consideration  for  the  pur- 
chase-money, equity  will  not  relieve  either  party.  Thus 
(*)in  a  case  at  the  Rolls  before  Lord  Alvanley,  by  original 
and  cross-bill,  the  estate  was  represented  on  the  one  hand 
of  the  value  of  9  or  10,000/. ;  and  on  the  other  of  only 
5,000/.  The  contract  was  for  6,000/.,  and  14,000/.  at 
the  death  of  a  person  aged  sixty-five.  Lord  Alvanley 
said,  it  was  not  a  case  of  actual  fraud  ;  but  it  was  insisted 
the  bargain  was  grossly  inadequate  ;  and  the  inadequacy 
was  very  great :  it  was  impossible  upon  the  whole  evi- 
dence to  make  the  estate  to  be  worth  more  than  10,000/.  ; 
though  he  ought  not  to  decree  a  performance,  yet  as  no 
advantage  was  taken  of  necessity,  &c.  he  was  not  war- 
ranted to  decree  the  vendor  to  deliver  up  the  contract, 
the  only  inconvenience  of  which  would  be,  that  an  action 
would  lie  for  damages ;  and  he  accordingly  dismissed 
both  bills(e). 

Indeed  few  contracts  can  be  enforced  in  equity  where 
the  price  is  unreasonable,  because  contracts  are  not  often 
strictly  observed  by  either  party  ;  and  if  an  unreasonable 
'contract  be  not  performed  by  the  vendor,  according  to  the 
letter  in  every  respect,  equity  will  not  compel  a  perform- 
ance in  specie(f)(l68). 

But  there  are  few  cases  in  which  a  purchaser  could  be 
relieved  after  the  conveyance  is  executed  and  the  purchase 
completed,  on  account  of  the  unreasonable  price(^). 

{d)  Shirley  v.  Stratton,  1  Bro.  C.  C.  440. 

(e)  Day  v.  Newman,  2  Cox,  77;  10  Ves  jun.  300,  cited  ;  and  see 
Squire  v.  Baker,  5  Vin.  Abr.  549,  pi.  12. 

(/)  See  the  cases  cited  in  n.  (a),  ante  ;  and  Edwards  v.  Heather,  Sel. 
Cha.  Ca.  3. 

(g-)  Small  V.  Attwood,  1  Yo.  Rep.  407. 

(168)  See  Rtiggc  v.  Ellis,  1  Des.  160. 

(*268) 


318  OF  THE  CONSIDERATION. 

In  Small  v.  Attwood(/i),  where  the  contract  was  re- 
scmded ;  after  the  decree  setthig  it  aside  and  directing 
the  accounts  to  be  taken,  the  purchasers  filed  a  supple- 
mental bill,  stating  the  payment  of  200,000/.,  part  of  the 
purchase-money  (which  was  paid  long  before  the  bill  was 
filed),  and  tracing  the  investment  of  it  in  stock,  and  the 
(*)transferof  the  stock  to  a  third  person  without  considera- 
tion as  it  was  alleged,  and  praying  that  they,  without 
prejudice  to  their  lien  on  the  estate  of  which  they  were 
in  possession,  might  be  decreed  to  be  entitled  to  the 
specific  stock.  And  Lord  Lyndhurst,  C.  B.,  so  decided, 
although  the  money  was  paid  in  consideration  of  the  pos- 
session of  the  estate  being  given  to  the  purchasers,  with 
which  they  had  acted  as  owners.  They  had  long  had  pos- 
session, which  they  retained,  of  the  estate,  and  a  lien  upon 
it  for  what  they  had  paid  ;  and  they  thus  also  obtained 
the  property  which  had  been  bought  with  the  portion  of 
the  purchase-money  paid.  This  is  the^r.s'^  case  in  which 
equity  ever  followed  the  purchase-money,  and  ordered  it 
specifically  to  be  restored.  The  author  refrains  from 
further  observing  upon  this  decision,  as  it  is  now  upon 
appeal  in  the  House  of  Lords. 


I 


n.  It  appears  to  be  settled,  that  mere  inadequacy  of 
price  is  not  a  sufficient  ground  for  a  court  of  equity  to 
refuse  its  assistance  to  a  purchaser^,  particularly  where 
the  estate  is  sold  by  auction(A;)(169). 

(/i)  Rep.  p.  101. 

(?■)  Coles  V.  Trecothick,  9  Ves.  jun.  234  ;  Burrows  v.  Lock,  10  Ves. 
jun.  470.  See  Young  v.  Clark,  Free.  Cha.  538  ;  Barrett  v.  Gonieserra, 
Bunb.  94;  Underwood  v.  Hithcox,  1  Ves.  279;  Mortlockt).  Buller,  10 
Ves.  jun.  292  ;  and  Lowther  v.  Lowther,  13  Ves.  jun.  95  ;  Western  v. 
Russell,  3  Ves.  &  Bea.  187. 

(k)  White  V.  Damon,  7  Ves.  jun.  30.  See  Collet  v.  Woollaston,  3 
Bro.  C.  C.  228. 

(169)  See  Butler  v.  Haskell,  4  Des.  651,  678.  Wherein  the  question 

(*259) 


OF  THE  CONSIDERATION. 


319 


In  White  v.  Damon,  however,  although  the  estate  was 
sold  by  auction,  Lord  Rossljn  dismissed  the  bill  merely  on 
account  of  the  inadequate  price  given  for  the  estate,  viz. 
1,120/.  and  it  was  worth  2,000/.;  but  on  a  rehearing 
before  Lord  Eldon,  although  the  decree  was  affirmed 
upon  a  different  ground,  yet  his  Lordship  said,  he  was 
(*)inclined  to  say  that  a  sale  by  auction,  no  fraud,  surprise, 
&c.  cannot  be  set  aside  for  mere  inadequacy  of  value.  It 
would  be  very  difficult,  he  said,  to  sustain  sales  by  auc- 
tion, if  the  Court  would  not  specifically  perform  the 
agreement.  And  in  a  subsequent  case(/),  his  Lordship 
expressed  the  same  opinion,  and  referred  to  the  case  of 
White  V.  Damon. 

But  if  an  uncertain  consideration  (as  a  life-annuity)  be 
given  for  an  estate,  and  the  contract  be  executory,  equity 
it  seems  will  enter  into  the  adequacy  of  the  considera- 
tion(/?i). 

Although  a  purchaser  is  not  bound  to  acquaint  the 
vendor  with  any  latent  advantage  in  the  estate(w),  yet 
a  concealment,  for  the  purpose  of  obtaining  an  estate  at 
a  grossly  inadequate  price,  may  be  deemed  fraudu- 
lent(170). 

(/)   Ex  parte  Latham,  7  Ves.  jun.  35,  note. 

(to)  Pope  V.  Root,  7  Bro.  P.  C.  184  ;    Mortimer  v.  Capper,  1  Bra. 
C.  C.  156  ;  and  Jackson  v.  Lever,  3  Bro.  C.  C.  605. 
(n)    See  2  Bro.  C.  C.  423. 

as  to  inadequacy  of  price  is  very  fully  discussed  ;  and  where  the  English 
decisions  are  reviewed.  Inadequacy  of  price  not  a  sufficient  ground 
for  setting  aside  a  sale  ;  unless  it  be  so  gross  as  of  itself  to  amount  to 
evidence  of  fraud.  Osgood  \.  Frankltn,  2  Johns.  Ch.  Rep.  1,23.  An 
agreement  for  the  sale  of  a  present  interest  in  a  valuable  estate,  which 
is  executed,  will  not  be  set  aside  on  the  ground  of  mere  inadequacy  of 
price ;  there  being  no  fraud,  concealment,  or  misrepresentation.  Gre- 
gor  V.  Duncan,  2  Des.  636.  Livingston  v.  Byrne,  on  appeal,  11 
Johns.  Rep.  655. 

(170)  Equity  wA  relieve  against  a  contract  of  sale  of  lands,  where 
the  purchaser  had    discovered  salt   water  on    the   premises,  and  in- 

(*260) 


320  ^^  'THE  CONSIDERATION. 

Thus  in  the  case  of  Deane  v.  Rastron(o),  an  agreement 
was  made  for  sale  of  land  at  a  halfpenny  per  square  yard. 
The  price  was  in  all  about  500/.,  the  real  value  2,000/. 
The  purchaser  went  out  to  an  attorney,  got  him  to  calcu- 
late the  amount,  and  desired  him  not  to  tell-  the  vendor 
how  little  it  was ;  then  carried  the  agreement  to  the  ven- 
dor, and  prevailed  on  him  to  sign  it  immediately.  The 
Court  of  Exchequer  said,  the  desire  of  concealment  would 
be  such  a  fraud  as  to  void  the  transaction,  as  parties  to  a 
contract  are  supposed,  in  equity,  to  treat  for  what  they 
think  a  fair  price. 

So  a  misrepresentation  by  the  purchaser,  who  was  the 
agent  of  the  seller,  of  the  value  of  the  estate,  although  it 
operated  only  to  a  small  extent,  has  been  held  to  be  a 
(*)sufficient  defence  against  a  bill  for  a  specific  perform- 
ance ;  for  to  entitle  a  person  to  call  for  the  aid  of  a  court 
of  equity,  he  must  go  there  with  clean  handsfp)(171). 

Where  neither  of  the  parties  knows  the  value  of  the 
estate,  at  the  time  the  contract  is  entered  into,  no  inade- 
quacy of  consideration  will  operate  as  a  bar  to  the  aid  of 
equity  in  favor  of  the  purchaser. 

Thus,  in  a  caise(q)  where  a  common  was  to  be  inclosed, 
one  man  having  a  right  of  common,  agreed,  before  the 
commissioners  had  made  any  allotment,  or  any  one  could 
know  what  it  was  to  be,  to  sell  his  allotment  for  20/.     Af- 

(o)  1  Anstr.  64  ;  and  see  Young  v.  Clerk,  Prec.  Cha.  538 ;  Lukey 
V.  O'Donnell,  2  Sch.  &  Lef.  466. 

(p)  Cadman  v.  Horner,  18  Ves.  jun.  10  ;  Wall  v.  Stubbs,  1  Madd. 
80. 

(q)  Anon.  1  Bro.  C.  C.  158  ;  6  Ves.  jun.  24,  cited  ;  but  see  2  Atk. 
1.34. 

dustriously  and  artfully  concealed  the  fact  from  the  vendor.  Bowman 
V.  Bates,  2  Bibb,  52.  See  Eichelberger's  Les.  v.  Baruitz,  1  Yeates, 
312. 

(171)  See  Parker  v.  Carter,  4  Munf.  288.  Moseley's  Exr.  v.  Buck, 
3  Munf.  233. 

(*261) 


OF  THE  CONSIDERATION. 


321 


terwavds  it  turned  out  to  be  worth  200/.  Sir  Joseph  Jekyll 
said,  the  contract  ought  to  be  enforced,  as  no  one  could 
know  what  the  allotment  would  be  ;  and  both  parties  were 
equally  in  the  dark  ;  but  it  might  be  different  if  the  cir- 
cumstances had  been  known  to  the  plaintiff. 

But,  whether  an  estate  is  sold  by  auction,  or  by  private 
agreement,  equity  will  be  as  vigilant  in  discovering  an 
excuse  for  refusing  to  perform  the  contract,  where  the 
price  is  inadequate,  as  it  will  where  the  consideration  is 
unreasonable  (r). 


III.  A  conveyance  executed  will  not,  however,  be  easily 
set  aside  on  account  of  the  inadequacy  of  the  considera- 
tion ;  for  there  is  a  great  difference  between  establishing 
and  rescinding  an  agreement(5)(172).  It  is  not  sufficient 
to  (*)set  aside  an  agreement  in  equity,  to  suggest  weak- 
ness and  indiscretion  in  one  of  the  parties  who  has  en- 
gaged in  it ;  for  supposing  it  to  be  in  fact  a  very  hard  and 
unconscionable  bargain,  if  a  person  will  enter  into  it  with 
his  eyes  open,  equity  will  not  relieve  him  upon  this  footing 
only,  unless  he  can  show  fraud  in  the  party  contracting 
with  him,  or  some  undue  means  made  use  of  to  draw  him 

(r)  Whorwood  v.  Simpson,  2  Yern.  186 ;  Emery  v.  Wase,  5  Ves. 
jun.  846  ;  8  Ves.  jiin.  505  ;  Twining  v.  Morris,  2  Bro.  C.  C.  326  ; 
and  see  the  cases  cited  in  n.  (a),  supra  ;  and  see  Mortlock  v.  Buller, 
10  Ves.  jun.  292  ;  Maddeford  v.  Austwick,  1  Sim.  89. 

(s)  See  Dews  v.  Brandt,  Sel.  Cha.  Ca.  7 ;  Cases,  Dom.  proc.  1728  ; 
Hamilton  v.  Clements,  Cas.  Dom.  Proc.  1766.  See  Small  v.  Aitwood, 
1  You.  407. 

(172)  See  Osgood  v.  Franklin,  2  Johns.  Ch.  Rep.  23.  In  this  case, 
KENT  Chancellor,  said,  "  Though  inadequacy  of  price  is  not  a  ground 
for  decreeing  an  agreement  to  be  delivered  up,  or  a  sale  rescinded,  (un- 
less its  grossness  amount  to  fraud)  yet  it  maybe  sufficient,  for  the  court 
to  refuse  to  enforce  performance.  It  is  not  an  uncommon  case  for  the 
court  to  refuse  to  enforce,  for  inadequacy,  and  at  the  same  time  refuse 
to  rescind."  See  Clitherall  v.  Ogilvie,  1  De??.  250,  260.  and  note, 
p.  258,  259,  260.     See  also,  Gregor  v.  Duncan,  2  Des.  636. 

VOL.  I.  41  (*262) 


322  0^  "^HE  CONSroERATION. 

into  such  an  agreement(^).  To  set  aside  a  conveyance, 
there  must  be  an  inequality  so  strong,  gross  and  manifest, 
that  it  must  be  impossible  to  state  it  to  a  man  of  common 
sense,  without  producing  an  exclamation  at  the  inequality 
of  it(w)»  The  truth  is,  that  in  setting  aside  contracts,  on 
account  of  an  inadequate  consideration,  the  Court  proceeds 
on  fraud.  In  all  such  cases,  however,  the  basis  must  be 
gross  inequality  in  the  contract,  otherwise  the  party  sell- 
ing cannot  be  said  to  be  in  the  power  of  the  party  buying ; 
unless  actual  imposition  is  proved  by  gross  inequality, 
other  circumstances  of  fraud  will  pass  for  nothing ;  the 
basis  must  be  gross  inequality (.x')(l  73). 

But  a  conveyance  obtained  for  an  inadequate  considera- 
tion, from  one  not  conusant  of  his  right,  by  a  person 
who  had  notice  of  such  right,  will  be  set  aside,  although 
no  actual  fraud  or  imposition  is  proved (?/)( 174). 

So  if  advantage  is  taken  of  the  distress  of  the  vendor, 

(t)   Per  Lord  Hardwicke,  Willis  r.  Jernegan,  2  Atk.  251. 

(m)  Per  Lord  Thurlow  in  Gwynne  v.  Heaton,  1  Bro.  C.  C.  1  ;  and 
see  Stephens  v.  Bateman,  1  Bro.  C  C.  22  ;  Floyer  v.  Sherard,  Ambl. 
18  ;  Heathcote  v.  Paignon,  2  Bro.  C.  C.  167,  and  the  cases  there  cit- 
ed ;  Spratley  v.  Griffiths,  2  Bro.  C.  C.  179,  n. ;  Low  v.  Barchard»  8 
Ves-  jun.  133  ;  Underhill  v.  Horvvood,  10  Yes.  jun.  209  ;  14  Yes.  jun. 
28  ;  Verner  v.  "Winstanley,  2  Scho.  &  Lef.  393  ;  Mac  Ghee  v.  Morgan, 
Bruce  v.  Rogers,  ib.  395 ;  Darley  v.  Singleton,  1  Wight.  25  ;  Evans 
v>  Brown,  ib.  102  ;  Ex  parte  Thistlewood,  1  Rose,.  290  ;  Stilwell  v. 
Wilkins,  1  Jac.  280. 

(ar)   Per  Lord   Thurlow  in  Gartside  r.  Tsherwood,  1  Bro.  C.  C.  558. 

(j/)  See  Evans  r.  Luellyn,  2  Bro.  C.  C.  150 ;  and  the  cases  cited  in 
the  next  note. 

(«)  Heme  v.  Meers,  1  Vern.  465;  1  Bro.  C.  C.  176,  n. ;  Gould  v. 
Okenden,  4  Bro.  P.   C.  by  Toml.   193  ;  Farguson  v.  Maitland,  Gro. 

(173)  See  Gregory.  Duncan,  2  Des.  636,  639.  Cliiherall  v.  Ogil- 
t)tc,  1  Des.  259  ;  and  note,  p.  258.  Osgood  v.  Franklin,  2  Johns.  Ch. 
Rep.  23.  Btdler  v.  Haskell,  4  Des.  687,  697.  See  also,  Howell  v. 
Baker,  ^  Johns.  Ch.  Rep.  118.  Osgood  v.  Franklin,  2  Johns.  Ch. 
Rep.  24.     Per  KENT. 

(174)  See  Buller  v.  Haskell,  4  Des.  651,  697. 


OF  THE  CONSIDERATION.  323 

(*)the  sale  will  be  set  aside(2)  :  and  this  was  done  in  one 
case,  although  the  purchaser  was  really  run  to  great  ha- 
zard, and  was  to  be  at  great  expense  and  trouble  in  many 
foreseen  and  unavoidable  law-suits  about  the  estate,  the 
issue  of  which  was  very  doubtful(a)(175). 

The  reader  will  perceive  that  in  this  chapter  a  distinc- 
tion is  taken  between  contracts  in  fieri,  and  contracts  ac- 
tually executed  ;  but  in  the  case  of  Coles  v.  Trecothick(6), 
Lord  Eldon  appears  to  have  been  of  opinion,  that  no 
such  distinction  exists.  His  Lordship  said,  that  unless  the 
inadequacy  of  price  is  such  as  shocks  the  conscience,  and 
amounts  in  itself  to  conclusive  and  decisive  evidence  of 
fraud  in  the  transaction,  it  is  not  a  sufficient  ground  for 
refusing  a  specific  performance (11 6). 


IV.  In  treating  of  inadequacy  of  price,  we  must  be 
careful  to  distinguish  the  cases  of  reversionary  interests, 
the  rules  respecting  which,  especially  where  an  heir  is  the 
vendor,  depend  upon  principles  applicable  only  to  them- 
selves, and  not  easily  definable(c).  The  heir  of  a  family 
dealing  for  an  expectancy  in  that  family,  shall  be  dis- 
tinguished from  ordinary  cases,  and  an  unconscionable 
bargain  made  with  him,  shall  not  only  be  looked  upon 
as  oppressive  in  the    particular    instance,  and    therefore 

and  Rud.  of  Law  and  Eq.  p.  89,  pi.  1  ;  Pickett  v.  Loggon,  14  Yes. 
215  ;   Murray  v.  Palmer,  2  Scho.  &  Lef.  474. 

(a)  Gordon  v.  Crawford,  before  the  House  of  Lords  ;  Gro.  and 
Rud.  of  Law  and  Eq.  p.  92,  pi.  16  ;  Printed  Cases  Dom.  Proc.  1730. 

{b)  9  Ves.  jun.  234 ;  scd.  qu.  and  see  the  cases  cited  in  this  chapter. 

(c)  See  -9  Ves.  jun,  243  ;  2  Pow.  Contr.  181  ;  3  Wooddes.  460,  a. 
7;  Gilb.  Lex  Praitor.  291  ;  1  Trea.  Eq.  c.  11,  s.  12,  and  Mr.  Fon- 
blanque's  notes,  ibid. 

(175)  See  Osgood  v.  Franklin,  2  Johns.  Ch.  Rep.  24.  Per  KENT. 
BuUer  V.  Haskell,  4  Des.  651.     Bunch  v.  Hurst,  3  Des.  273. 

(176)  In    Osgood  v.   Franklin,  2  Johns.    Ch.  Rep.   23.      Kent, 

Chancellor,  says,  "  There  is   a  very  important  distinction,  which  runs 

through  the  cases,  between  ordering  a  contract  to  be  rescinded,  mid  do- 

creeiiig  a  specific  performance.'' 

(*26») 


324 


OF  THE  COMSIDERATION. 


avoided,  but  as  pernicious  in  principle,  and  therefore 
(*)repressed(f/).  There  are  two  powerful  reasons  why 
sales  of  reversions  by  heirs  should  be  discountenanced  ;  the 
one,  that  it  opens  a  door  to  taking  an  undue  advantage  of 
an  heirbeing  in  distressed  and  necessitous  circumstances(e), 
which  may  perhaps  be  deemed  a  private  reason  :  the  other 
is  founded  on  public  policy,  in  order  to  prevent  an  heir 
from  shaking  off  his  father's  authority,  and  feeding  his  ex- 
travagances by  disposing  of  the  family  estRte(fJ.  Every 
case  of  this  nature  must,  however,  depend  on  its  own  cir- 
cumstances ;  the  Courts  profess  not  to  lay  down  any  partic- 
ular rules,  lest  devices  should  be  framed  toevade  them(177). 

(d)  Per  Lord  Thuilow,  1  Bro.  C.  C.  10.  See  Nott  v.  Hill,  1  Vern. 
167  ;  2  Vein.  27  ;  Barney  i\  Pitt,  2  Verti.  14  ;  Earl  of  Ardglasse  v. 
Muschamp,  1  Vern.  237  ;  Twisleton  v.  Griffith,  1  P.  Wms.  310  ;  Cur- 
wyn  V.  Milner,  3  P.  Wms.  293,  r>.  (C)  ;  Sir  John  Barnardiston  v.  Lin- 
good,  2  Atk.  133  ;  Baiigh  v.  Price,  1  Wils.  320  ;  Gwynne  v.  Heaton, 
1  Bro.  C.  C.  1  ;  Bernal  v.  Donegal,  3  Dow,  133  ;  Blakeney  v.  Bagott, 
3  Bligh,  N.  S.  237. 

(e)  Sir  John  Barnardiston  v.  liingood,  2  Atk.  133. 

(/)   Cole  V.  Gibbons,  3  P.  Wms.  290.     See  Barnard.   Cha.  Rep.  6. 


(177)  See  Osgood  v.  Franklin,  2  Johns.  Ch.  Rep.  25.  Butler  v. 
Haskell,  4  Des.  C51,  687. 

In  Butler  v.  Haskell,  4  Des.  687,  688.,  DESAUSSURE,  Chancel- 
lor, says,  "  there  is  a  distinction  made  between  the  cases  of  young  heirs 
selling  expectances,  and  of  others,  which  I  am  not  disposed  to  support. 
It  is  said,  that  the  former  are  watched  with  more  jealousy,  and  more 
easily  set  aside  than  others,  on  principles  of  public  policy.  This  was 
certainly  true  at  first ;  but  the  eminent  men,  who  have  sat  in  chancery, 
have  gradually  applied  the  great  principles  of  equity,  on  which  relief  is 
granted,  to  every  case  where  the  dexterity  of  intelligent  men  had  ob- 
tained bargains  at  an  enormous  and  unconscientous  disproportion,  from 
the  ignorance,  the  weakness,  or  the  necessities  of  others,  whether  young 
heirs  or  not."     See  Boynton  v.  Hubbard,  7  Mass.  Rep.  112. 

In  Fitch  I'.  Fitch,  8  Pick.  480,  it  was  decided  that  a  covenant  enter- 
ed into  by  an  heir  expectant,  upon  a  valid  consideration  and  with  the 
consent  of  the  father,  to  convey  the  estate  which  should  come  to  him, 
was  valid.  "  The  Knowledge  of  the  father,  and  his  consent  to  the 
transaction  is  essential  to  its  validity.     Though  no  title  passed  by  the 

(*264) 


OF  THE  CONSIDERATION.  325 

The  circumstance  of  the  heir  being  unprovided  for,  will 
not  prevail  much  in  the  purchaser's  favor  :  the  remoteness 
or  uncertainty  of  the  interest  is  not  material,  if  the  terms 
be  unreasonable,  nor  can  much  stress  be  laid  upon  the 
purchaser  incurring  the  risk  of  the  loss  of  his  money,  in 
case  the  heir  die  before  he  come  into  possession  ;  nor  will 
the  acquiescence  of  the  seller  during  the  continuance  of 
the  same  situation  in  which  he  entered  into  the  contract 
prejudice  him(^). 

The  adequacy  of  the  consideration  is  considered  with 
reference  to  the  time  of  the  contract  and  not  to  the  event, 
and  the  burden  lies  on  the  purchaser  in  these  cases 
to  show  that  a  full  and  adequate  consideration  was 
paid(/i)(178). 

(*)A  very  anxious  protection  is  also  extended  by  equity 
to  persons  selling  reversionary  interests,  who  are  not 
heirs,  although  certainly  the  same  reasons  do  not  occur 
in  support  of  it(z). 

And  although  the  bargain  include  property  in  pos- 
session, yet  if  the  bulk  of  the  property  is  reversionary,  the 
whole  contract  will  be  set  aside(A:J(179). 

(g-)   Gowland  v.  De  Faria,  17  Ves.  jun.  20. 

(Ji)  Gowland  v.  De  Faria,  uhi  sup ;  Evans  v.  Griffith,  Farmer  v. 
Warden,  17  Yes.  jun.  24.  cited  ;  Medlicott  r.  O'Donel,  1  Ball  & 
Beatty,  136  ;   Kendall  v.  Beckett,  2  Russ.  &  MyL  88. 

{i)  Wiseman  v.  Beake,  2  Vern.  121  ;  Cole  v.  Gibbons,  3  P.  Wms. 
290. 

(fc)  Lord  Portmore  v.  Taylor,  4  Sim.  182. 


deed  made  in  the  life-time  of  the  father,  yet  the  covenant  to  make  fur- 
ther assurances  may  be  valid,  if  made  on  good  consideration,  without 
undue  advantage  or  oppression  taken  of  the  heir,  and  with  the  know- 
ledge and  consent  of  the  father." 

(178)  See  BvUerv.  Haskell,  4  Des.  698. 

In  judging  of  inadequacy  of  price,  reference  is  to  be  had  to  the  time 
of  the  sale  ;  "  accidental  subsequent  advantage  made  of  a  bargain,  is 
nothing."     Osgood  v.  Franklm,  2  Johns.  Ch.  Rep.  26. 

(179)  A  mortgage  to  secure  against  future  liabilities,  in  the  absence 

(*265) 


326  ^^  ^^^  CONSIDERATION. 

But  a  bona  fide  sale  of  a  reversionary  estate  cannot  be 
set  aside,  whether  the  vendor  be  an  heir  or  not(/),  unless 
fraud  or  imjDosition  be  expressly  proved,  or  be  implied 
from  the  inadequacy  of  the  consideration,  or  other  cir- 
cumstances attending  the  sale(»i),  although  in  a  late  case 
it  was  deemed  sufficient  to  avoid  the  contract(w),  that 
the  consideration  was  not  equal  to  the  calculated  value  in 
the  tables.  If  the  bill  be  delayed  for  a  great  length  of 
time(o),  or  the  vendor,  with  full  notice  of  all  the  circum- 
stances, and  of  his  right  to  set  aside  the  contract,  confirm 
the  purchase(pj,  equity  will  not  relieve  against  the  sale, 

{I)  Dews  V.  Brandt,  Sel.  Ca.  Cha.  8  ;  and  see  1  Bro.  C.  C.  6. 

(w)  Nicols  V.  Gould,  2  Ves.  422  ;  Gvvynne  v.  Heaton,  1  Bro.  C. 
C.  1  ;  Peacock  v.  Evans,  16  Ves.  jun.  512  ;  Ryle  v.  Brown,  13  Price, 
750  ;  Lord  Portmore  v.  Taylor,  4  Sim.  182. 

{n)  Gowland  v.  De  Faria,  17  Ves.  jun.  20.  The  decision  was  ap- 
pealed from,  but  the  suit  was  compromised  by  Gowland  (the  seller)  pay- 
ing the  costs  and  a  sum  of  money  to  De  Faria  (the  purchaser),  beyond 
the  sum  decreed  to  him  at  the  Rolls. 

(o)  Moth  V.  Atwood,  5  Ves.  jun.  845  ;  but  see  Roche  v.  O'Brien,  1 
Ball  &  Beatty,  330. 

{p)  Cole  V.  Gibbons,  3  P.  Wms.  290  ;  Chesterfield  v.  Janssen,  1 
Atk.  301  ;  2  Ves.  549.  See  Baugh  v.  Price,  1  Wils.  320  ;  Morse  v. 
Royal,  12  Ves.  jun.  365  ;  Roche  v.  O'Brien,  1  Ball  &  Beatty,  330. 

of  fraud  is  valid.  Thus  in  Hubbard  v.  Savage,  8  Conn.  R.  215,  where 
the  condition  of  a  mortgage  deed  was  "  that  whereas  A.  has  endorsed 
for  B.,  a  note  for  1000  dollars  and  has  agreed  to  indorse  in  note  or 
notes,  hereafter,  when  requested — if  B.  shall  well  and  truly  pay  said 
notes  according  to  their  tenor,  said  deed  is  to  be  void."  Afterwards  C. 
a  creditor  of  B.  took  security  for  his  debt  on  the  property  so  mortgaged  ; 
but  the  first  mortgage  was  held  to  be  valid.  Daggett,  J.  In  the  ab- 
sence of  all  fraudulent  intention,  I  am  unable  to  see  how  a  deed  given 
by  a  man  indebted  at  the  time,  to  secure  against  future  liabilities  can  be 
deemed  void.  It  was  held  valid  in  Stoughton  v.  Pasco,  5  Conn.  R. 
442  ;  Crane  v.  Deming,  7  ib.  387.  And  the  doctrine  has  been  recog- 
nised in  the  U.  S.  C.  not  only  as  a  security  for  debts  to  be  contracted, 
as  well  as  for  that  already  due.  United  States  v.  Hor,  3  Cranch,  73, 
89  ;  7  Ib.  34,  50. 


OF  THE  CONSIDERATION. 


327 


although  the  aid  of  the  Court  could  not  originally  have 
been  withheld. 

Where  a  sale  is  set  aside  on  account  of  the  inadequacy 
(*)of  the  consideration,  it  is  upon  the  principle  of  redemp- 
tion, and  the  conveyance  will  stand  as  a  security  for  the 
principal  and  interest,  and  even  costs(^)  ;  but  compound 
interest  will  not  be  allowed,  however  long  the  purchaser 
has  been  kept  out  of  his  money fr)  ;  in  many  cases,  there- 
fore, the  seller  is  not  merely  relieved  against  the  contract, 
but  a  considerable  benefit  is  given  to  him  at  the  expense 
of  the  purchaser.  In  a  late  case,  where  interest  had  been 
paid  on  the  purchase-money,  the  payments,  were  consider- 
ed to  be  of  principal  and  not  interest,  and  the  seller  was 
charged  with  interest  on  all  the  sums  received  by  him, 
whether  received  as  interest  or  as  principal(5). 

So  the  purchaser  will  be  allowed  for  lasting  and  va- 
luable improvements,  and  will  not,  like  a  mortgagee  be 
charged  with  what  without  wilful  default  he  might  have 
made(i). 

The  rules  on  this  head  have  a  strong  tendency  to  stop 
altogether  the  sale  of  reversions  ;  but  as  this  is  not  pos- 
sible, they  must  necessarily  have  the  effect  of  preventing 
the  sale  of  reversions  at  their  fair  market  value.  It  is  per- 
fectly well  known  that  reversions  upon  sales  even  by 
auction,  fetch  on  an  average  only  two-thirds  of  the  sum 
at  which  they  are  valued  in  the  tables :    according  to  the 

(q)  Twisleton  r.  Griffith,  1  P.  Wms.  310  ;  Gwynne  r.  Heaton,  1 
Bro.  C.  C.  1  ;  Peacock  v.  Evans,  16  Ves.  jun.  612  ;  Bowes  v.  Heaps, 
3  Ves.  &  Bea.  117 ;  but  in  Nicols  v.  Gould,  2  Ves.  423,  Lord  Hard- 
wicke  thought  he  could  not  set  aside  the  purchaser  without  making  the 
purchaser  pay  costs  ;  and  see  Baugh  v.  Price,  1  Wils.  320  ;  Gowland 
V.  De  Faria,  17  Ves.  jun.  20  ;  Morony  v.  O'Dea,  1  Ball  &  Beatty,  109, 
and  the  Reporter's  note  ;  and  Wood  v.  Abrey,  3  Madd.  417. 

(r)  Gowland  v.  De  Faria,  17  Ves.  jun.  20. 

(»)  Murray  v.  Palmer,  2  Scho.  &  Lef.  474. 

(0  S.  C. 

(*266) 


328 


OF  THE  CONSIDERATION. 


late  case  of  Gowland  v.  De  Faria(2f),  this  does  not  seem 
(*)to  operate  in  a  purchaser's  favor,  although  the  value  of 
a  thing  is  at  last  not  to  be  regulated  by  calculation,  bat  as 
it  is  vulgarly  termed,  by  vi^hat  it  will  fetch.  Experience 
has  shown,  that  under  the  most  favorable  circumstances, 
reversions  will  not  fetch  their  calculated  value,  which  only 
allows  the  purchaser  five  per  cent,  interest,  notwithstand- 
ing that  his  money  may  be  locked  up  for  many  years.  It 
seems  therefore  an  equity  not  founded  on  reason  or  conve- 
nience, which  in  these  cases  inquires  the  calculated  value 
of  the  subject  of  the  contract  instead  of  its  value  according 
to  the  well  known  market  price.  The  effect  of  such  an 
equity  must  ultimately  be  to  injure  the  very  persons  in 
whose  favor  it  was  introduced.  Reversions  will  never 
fetch  their  calculated  value.  Fair  purchasers  will  not  dare 
to  purchase  them  at  their  market  price,  and  consequently 
they  will  be  thrown  into  the  grasp  of  usurers,  who  will 
give  very  inadequate  considerations  for  them,  running  the 
risk  of  a  suit,  in  which  event  they  will  stand  in  as  good  a 
situation  as  if  they  had  given  the  fair  market  price  for 
them. 

In  a  recent  case(a:)  Chief  Baron  Alexander  refused  to 
set  aside  a  private  sale  of  a  reversionary  interest,  although 
Mr.  Morgan  the  actuary's  valuation  was  928/.  85.,  and  the 
price  paid  was  only  630/.,  rather  more  than  two-thirds  of 
the  calculated  value.  The  learned  Judge  could  not  bring 
himself  to  adopt  the  principle  laid  down  in  Gowland  v. 
De  Faria.  He  observed,  that  in  the  case  before  him  the 
price  agreed  on  and  actually  paid  was  in  his  opinion 
the  utmost  that,  according  to  every  human  probability, 
could  have  been  obtained.     He  did  not  dispute  Mr.  Mor- 

(m)  Supra,  p.  265,  and  note.  See  Ex  parte  ThisHewood,  1  Rose, 
290  ;  Lord  Portmore  v.  Taylor,  4  Sim.  182  ;  Whichcole  v.  Bramston, 
ib.  202,  n. 

{x)  Headen  v.  Rosher,  1  M'Clel.  &  You.  89 ;  but  Hincksman  v. 
Smith,  3  Russ.  433 ;  Hilliard  r.  Gambel,  1  Toml.  375,  n. 

(*267) 


OF  THE  CONSIDERATION. 


329 


gan's  valuation,  but  the  price  put  by  the  actuary  can 
never  be  procured  in  fact ;  the  witnesses  for  the  defen- 
dant (*) prove  it,  and  it  requires  no  witnesses.  The  price 
set  \^as  the  arithmetical  value.  Now  no  man  will  part 
with  his  ready  money,  and  all  the  advantages  which  the 
power  over  it  confers,  in  exchange  for  a  future  interest, 
without  some  compensation  beyond  the  dry  arithmetical 
value  of  it.  To  set  this  bargain  aside  would  be  in  effect 
to  decree  that  no  valid  bargain  for  a  reversion  can  be  made 
except  by  auction ;  and  he  did  not  know  how  any  other 
sale  of  such  an  interest  could  be  sustained,  unless  Judges 
proceeded  on  the  same  principle  as  he  did.  This  would  be 
a  very  inconvenient  restraint  on  the  power  of  the  owners 
of  such  property.  A  private  sale  is  no  doubt,  sometimes, 
an  imprudent  exercise  of  that  power ;  but  in  many  situa- 
tions, and  under  circumstances  of  no  unfrequent  occur- 
rence, it  is  wise  and  provident.  Every  case  should  turn 
on  its  particular  circumstances ;  and  he  thought  there 
were  none  in  the  present  case  which,  either  according  to 
sound  sense,  or  to  any  established  course  of  precedents, 
affected  it. 

In  the  case  of  Potts  v.  Curtis(i/),  the  bill  was  to  compel 
a  transfer  of  some  stock,  the  reversion  of  which  had  been 
purchased  by  private  contract  by  the  plaintiff.  The  pur- 
chase was  made  in  1812  for  550/.  The  claim  was  resisted 
upon  the  allegation  of  undue  advantage,  which  was  aban- 
doned, and  inadequacy  of  consideration.  The  plaintiff  ex- 
amined two  auctioneers  to  prove  the  value.  The  defendant 
examined  two  actuaries,  an  auctioneer,  and  a  land  agent ; 
and  in  the  result  the  purchaser  was  supported.  This  case, 
for  the  first  time,  fairly  introduced  the  question  between  the 
conflicting  evidence  of  auctioneers  and  actuaries,  or,  in 
other  words,  between  the  market  price  of  reversions,  and 
their  estimated  value  according  to  the  tables.     Lord  Lynd- 

(y)   1  You.  543. 
VOL.  u  42  (*268) 


350 


OF  THE  CONSIDERATION. 


hurst  observed,  that  he  had  made  a  calculation  as  to  the 
(*)iiiadequacy.     If  the  two  calculations  of  Morgan  and  An- 
sell,  the  actuaries,  and  the  average  of  their  results  be  taken 
on  the  one  side,  and  the  calculations  of  the  two  witnesses  for 
the  plaintiff,  and  the  average  of  their  results  be  stated  on 
the  other  side,  and  then  the  average  of  the  whole,  two  on 
one    side,  and  two  on  the  other,  be  taken,  the   result  is 
597/.,  that  is,  47/.   more   than  the  price  actually  paid. 
There  are  valuations  on  the  one  side,  making  it  530/.  and 
500/.,  adding  them  together,  the  sum  is   1,030/.,  which 
divided  by   two,  makes   the   average  515/.,  from   which 
one-eighth   being  taken,   in   consequence   of  a  mistake, 
reduces  it  to  450/.     Then,  on  the  other  side,  taking  the 
valuation  of  Morgan    at  855/.,  and   of  Ansel  I  at  847/., 
they  make     together    1,702/.,    which   divided    by    two, 
makes  the  average  851/.,  taking  one-eighth  from  which, 
reduces  it  to  744/. ;  so  that  the  average  on  one  side,  after 
taking  off  the  eighth,  is  744/.,  and  the  average  on  the 
other  side,  after  deducting  the  eighth,  is  450/.      Now, 
adding  the  744/.  to  the  450/.,  they  make  together  1,194/., 
and  this  being  divided  by  two,  makes  597/.,  as  the  aver- 
age of  the  whole,  which  is  just  47/.  more  than  the  price 
actually  paid.     It  was  quite  clear  that  Sir  William  Grant, 
in   Gowland  v.  De   Faria,   paused  a   moment  as  to  an 
actuary's  valuation  ;  but  then,  he  says,  "  there  is  nothing 
opposed  to  it ;    it  is  not  questioned,  but  it  is  admitted." 
He  (Lord  Lyndhurst)  took  that  as  the  basis  upon  which 
he  should  proceed.      It  was  equally  clear,  he  seemed  to 
think,  a  question  might  arise  as  to  whether  an  actuary's 
valuation  was  the  real  value.     Sir  William  Alexander  in 
Headon  v.  Rosher,  states  that  the  sum  at  which  an  actuary 
values   a  reversion  never  can  be  obtained.       He   (Lord 
Lyndhurst)  supposed  it  could  not ;  for  why  should  a  party 
choose  to  lock  up  his  money  at  the  ordinary  interest  ?   Some 
deduction  therefore  should  be  made  on  that  account ;  but 
in  this  case,  making  no  deduction,  and  taking  the  valua- 

(*269) 


OF  THE  CONSIDERATION.  301 

tions  (*)on  both  sides,  the  average  is  only  47/.  more  than 
the  money  paid  for  the  reversion.  It  was  unnecessary  for 
him  to  say  what  was  the  extent  of  the  inadequacy  of  con- 
sideration which  would  vitiate  a  contract  of  this  kind,  for 
it  did  not  appear  to  him  that  the  consideration  was  inade- 
quate when  the  subject  was  fairly  considered.  Undoubt- 
edly in  this  case,  Mr.  Morgan  and  Mr.  Ansel  1,  who  were 
both  actuaries,  and  accustomed  to  make  calculations  of 
this  description  with  great  accuracy,  stated  that  they  cal- 
culated the  value  of  this  reversion  at  considerably  more 
than  the  sum  that  was  agreed  to  be  paid  for  it.  This 
brought  him  (Lord  Lyndhurst)  to  the  consideration  of  the 
doctrine  in  Govvland  v.  De  Faria.  What  is  it  the  Master 
of  the  Rolls  there  says  ?  He  says,  "  The  question  is, 
whether  he  has  received  an  adequate  consideration.  Upon 
that  question,  the  evidence  is  all  one  way.  In  many  of 
these  cases  very  opposite  opinions  are  given  by  calcula- 
tors ;  but  here  Mr.  Morgan's  opinion  is  not  contradicted ; 
I  must  therefore  take  the  value  to  be  inadequate  ;  and 
I  do  not  see  how  I  can  avoid  setting  aside  the  contract." 
In  that  case  there  was  a  calculated  value  ;  that  value 
was  stated  by  Mr.  Morgan  ;  and  the  Master  of  the  Rolls 
not  finding  that  calculated  value  opposed  by  any  evidence, 
considered  he  was  bound  by  it ;  and  the  calculated  value 
being  much  more  than  the  sum  paid,  he  considered  the 
contract  was  altogether  void.  But  he  (Lord  Lyndhurst) 
thought  the  observations  made  upon  that  case  by  Sir 
William  Alexander,  very  judicious  and  very  proper.  He 
says,  "  Calculated  value  is  never  actual  value,  and  no 
person  selling  a  reversionary  interest  can  ever  expect  to 
get  the  calculated  value."  And  his  reason  is  extremely 
good  and  satisfactory.  He  says,  "  The  price  agreed  on 
and  actually  paid,  was  in  my  opinion  the  utmost  that, 
according  to  human  probability,  could  have  been  obtained. 
I  do  not  dispute  Mr.  Morgan's  valuation ;  but  the  price 
('^)of  an  actuary  cannot  be  obtained.     The  price  set  was 

(^270)  (*271) 


gg2  or  THE  C0.Nt«IDif.PvA1ICN. 

an  arithmetical  value.     Now  no  man  will  part  with  his 
ready  money,  and  all  the  advantages  which  the  power  over 
it  confers,  in  excliange  for  a  future  interest,  without  some 
compensation  beyond  the   dry  arithmetical  value  of  it." 
Sir  William  Alexander,  therefore,  would  have  come  to 
the  conclusion    probably  in  Gowland  v.  De  Faria,  that 
according    to  his  experience,  he  would    not    have  been 
bound,  as  the  Master  of  the  Rolls  conceived  himself  to 
be,  by  the  evidence  of  the  calculated  value.     The  Master 
of  the    Rolls  thought    that    the    calculated    value  being 
opposed  by  no  other  evidence,  was  conclusive  upon  him. 
According  to  his  (Lord    Lyndhurst's)  understanding   of 
the  judgment  of   Sir  William  Alexander,  he  would  not 
have  considered  himself  so  bound  ;  he  would  have  exer- 
cised his  own   understanding  and  experience,  and  made 
certain  deductions  from  the  calculated  value  ;  but  in  the 
present  case  they  have  evidence  not  merely  of  the  calcu- 
lated  value,  but  evidence  independent  of  it.     Now  the 
evidence  of   the  calculated  value  of  the  two  most    ex- 
perienced  witnesses   on  the  part   of  the  defendant,  those 
on  whose  judgment  he  should  be  disposed  most  to  rely, 
Mr.   Morgan  and  Mr.  Ansell,  was,   that    the  calculated 
value    amounted  to  744/.     When  he    said  744/.,  that  is 
the  average  of  their  valuation,  after  deducting  one-eighth 
in    consequence   of    their   calculation     having    originally 
included  2,000/.,  which  it  turned  out  should  have  been 
omitted.     Their  estimated  value,  therefore,  is  744/. ;   two 
thirds  of  that  sum  is  496/.  only.      If  you  deduct,  accord- 
ing to  common  experience,  a  third  from  the  calculated 
value,  the    proportion    to  which    as    the    average    price 
obtained(z),  it  w^ould  reduce  the  744/,   to  496/.,  whereas 
the  sum  here  contracted  for  amounted  to  550/.     But  what 
.(*)was  the  evidence  on  the  other  side  ?  The  evidence  on 
£he  other  side,  of  Mr.  Fairbrother,  was,  that  it  was  not 

(z)  Sug.  Tend.  &  Puich.  239. 

1*272) 


•■ 


OF  THE  CONSIDERATION. 


333 


worth  to  sell  more  than  530/. :  the  evidence  of  Mr.  Ab- 
bott, that  it  was  not  worth  more  than  500/.  Taking 
therefore  the  evidence  of  Mr.  Fairbrother,  and  the  evi- 
dence of  Mr.  Abbott,  who  were  both  experienced  persons 
in  selling  property  of  this  description,  and  contrasting  that 
with  the  calculated  value,  the  estimate  they  put  upon  the 
property  was  something  more  than  two-thirds  of  the  cal- 
culated value,  and  something  less  than  the  money  actual- 
ly given  for  the  property.  There  was  another  way  of 
considering  it,  which  he  had  already  presented  to  the  par- 
ties :  he  would  take  Mr.  Morgan  and  Mr.  Ansell  on  one 
side,  and  take  their  average,  and  then  Fairbrother  and  Ab- 
bott on  the  other  side,  and  take  their  average,  and  then 
taking  the  average  of  the  two  sets  of  calculators,  he  found 
the  estimated  value  upon  that  average  was  only  597/., 
which  was  only  47/.  more  than  the  sum  actually  contract- 
ed to  be  paid. 

In  a  late  case(rt).  Sir  John  Leach  held  that  the  rule 
did  not  extend  to  sales  by  auction.  His  Honor  said,  that 
the  principle  of  the  rule  could  not  be  applied  to  sales 
of  reversion  by  auction.  There  being  no  treaty  between 
vendor  and  purchaser,  there  can  be  no  opportunity  for 
fraud  or  imposition  on  the  part  of  the  purchaser.  The 
sale  by  auction  is  evidence  of  the  market  price.  It  was 
said,  that  pretended  sales  by  auction  may  be  used  to  cover 
private  bargains ;  where  such  cases  occur  they  will  ope- 
rate nothing. 

So  the  same  Judge  held,  that  the  rule  did  not  apply  to 
a  sale  by  a  father,  tenant  for  life,  and  his  son  tenant  in 
tail  in  remainder,  for  they  form  a  vendor  with  a  present 
(*)interest,  and  meet  a  purchaser  with  the  same  advan- 
tages as  if  a  single  person  had  the  whole  power  over  the 
estate(6). 

(o)  Shelly  v.  Nash,  3  Madd.  232.  See  Fox  v.  Wright,  6  Madd. 
111. 

(6)  Wood  V.  Abrey,  3  Madd.  417. 

(*273) 


334 


OF  THE  CONSIDERATION. 


In  Baker  v.  Bent(c),  where  the  bill  was  filed  to  set 
aside  for  undervalue  a  sale  of  a  reversion  expectant  upon 
the  death  of  a  tenant  for  life  without  issue  male,  and 
subject  to  charges  in  other  events,  the  Master  of  the 
Rolls  said,  that  the  probability  that  a  testator  of  sixty- 
three  will  marry  and  have  issue,  depending  upon  the 
habits  and  disposition  of  the  party,  and  the  accidents 
of  life,  is  not  the  subject  of  estimate  or  calculation,  and 
he  put  out  of  his  consideration  all  evidence  which  af- 
fected to  set  a  value  on  that  contingency.  But  as,  in  the 
case  before  him,  the  purchaser  at  the  beginning  of  the 
treaty  was  not'  aware  that  such  a  contingency  existed, 
and  he  put  a  value  upon  the  plaintiff's  interest,  as  if  the 
reversion  were  actually  to  take  effect  upon  the  death  of 
the  tenant  for  life ;  and  when  he  afterwards  discovered 
the  contingency  he  proposed  to  deduct  one  half  of  the 
sum  he  had  just  offered,  and  that  proposal  was  ultimately 
the  basis  of  the  agreement  ;  the  learned  Judge  referred 
it  to  the  Master  to  inquire,  what  was  the  value  of  the 
reversion,  supposing  it  had  been  to  take  effect  certainly 
at  the  death  of  the  tenant  for  life,  and  by  declaring  that 
one  half  of  such  value  is  to  be  deducted  in  respect  of  the 
contingency. 

It  must  not,  however,  be  understood,  that  because 
there  is  a  contingency  which  is  not  strictly  the  subject 
of  valuation,  a  purchaser  can  sustain  a  purchase  at  an 
undervalue. 

It  must  be  remarked,  that  we  have  no  certain  rule  by 
(*)which  the  inadequacy  of  a  consideration  can  be  ascer- 
tained. Our  law,  indeed,  hath  in  one  instance((/) 
adopted  the  rule  of  the  civil  law  ;  by  which  no  considera- 
tion for  an  estate  was  deemed  inadequate  which  exceeded 


» 


(c)  1  Russ.  &  Myl.  224  ;  see  Sherwood  v.  Robins,  1  Mood.  & 
Malk.  194. 

{d)  Vide  Duke,  177;  el  infra,  ch.  16;  and  see  Baldwins.  Roch- 
fort,  2  Ves.  517,  cited.  ff 

(*274) 


OF  THE  CONSIDERATION.  gog 

half  the  real  value  of  the  estate  ;  and   Lord  Nottingham 
wished  the  rule  universally  prevailed  in  England(e). 


If  it  be  agreed,  that  the  price  of  an  estate  shall  be  fixed 
by  a  third  person,  and  such  person  accordingly  name  the 
sum  to  be  paid  for  the  estate,  equity  will  compel  a  per- 
formance in  specie ;  but  if  the  referee  do  not  act  fairly, 
or  a  valuation  be  not  carefully  made,  execution  of  the 
contract  will  not  be  compelled  ;  especially  if  there  be 
any  other  ground  upon  which  the  Court  can  fasten,  as 
a  bar  to  its  aid(f). 

By  the  civil  law,  also,  a  price  was  considered  sufficiently 
certain,  if  it  was  to  be  fixed  by  a  person  named,  and  such 
person  accordingly  fixed  the  sum  :  but  it  appears  by  the 
Institutes(§"),  "  Tnte?^  veteres  satis  abundeque  hoc  duhitatur^ 
constaretne  venditio,  an  non.^^ 

Such  arbitrators  may  take  the  opinion  of  a  third  per- 
son as  evidence,  but  they  cannot  merely  delegate  their 
authority(/i). 

If  an  agreement  be  made  to  sell  at  a  fair  valuation,  the 
Court  will  execute  it  although  the  value  is  not  fixed.  For 
as  no  particular  means  of  ascertaining  the  value  are  pointed 
out,  there  is  nothing  to  preclude  the  Court  from  adopting 
any  means  adapted  to  that  purpose(/). 

(*)Bat  where  parties  agree  upon  a  specific  mode  of 
valuation,  as  by  two  persons,  one  chosen  by  each,  unless 
the  price  is  fixed  in  the  way  pointed  out,  the  Court  cannot 
enforce  the  performance  of  the  agreement,  for  that  would 

(e)  SeeNottr.  Hill,  2  Cha.  Ca.  120;  1  Treat.  Eq.  119;  Grotius 
de  jure  Belli  ac  Pads,  L.  2,  c.  12,  s.  12. 

(/)  Emery  v.  Wase,  5  Ves.  jun.  346  ;  8  Yes.  jun.  605  ;  Hall  v, 
Warren,  9  Ves.  jun.  605. 

(g)  HI.  xxiv.  1.  For  the  cases  arising  out  of  this  rule,  vide  Via- 
nius,  674. 

{h)  Hopcraft  v.  Hickman,  2  Sim.  &  Stu.  130. 

(t)  See  14  Yes.  jun.  407, 

(*275) 


336 


OF  THE  CONSIDERATION. 


be  not  to  execute  their  agreement,  but  to  make  a  new  one 
for  them.  Therefore,  where  the  agreement  was  to  sell  at 
a  valuation  by  arbitrators,  to  be  appointed,  or  their  um- 
pire, and  arbitrators  were  appointed,  and  differed  as  to 
value,  and  could  not  agree  upon  an  umpire,  the  Court 
refused  to  interfere (/c). 

In  this  respect  our  law  accords  with  the  civil  law(/). 
The  same  rule  is  adopted  in  the  Code  Napoleon(»i). 
After  stating  that  the  price  ought  to  be  fixed  by  the  par- 
ties, it  adds,  "  II  pent  cependant  etre  laisse  a  I'arbitrage 
d'un  tiers  :  si  le  tiers  ne  veut  ou  ne  peut  faire  I'estimation, 
il  n'y  a  point  de  vente." 

If  therefore  the  medium  of  arbitration  or  umpirage  is 
resorted  to  for  settling  the  terms  of  a  contract,  and  fails, 
equity  has  no  jurisdiction  to  determine  that  though  there 
is  no  contract  at  law,  there  is  a  contract  in  equity : — If 
the  instrument  assume  that  the  award  shall  bind  the  par- 
ties personally,  the  death  of  one  of  them  before  the  award 
will  of  course  be  a  countermand  of  the  submission  at  law, 
and  equity  cannot  enforce  the  contract(w).  So  if  the 
arbitrators  are  named,  and  one  party  refuses  to  execute 
the  arbitration  bond,  as  it  is  not  certain  that  any  award 
will  ever  be  made,  equity  will  not  interfere ;  for  the  relief 
sought  is  a  specific  performance  by  the  defendant  convey- 
ing (*)at  such  price  as  the  arbitrators  named  shall  hereaf- 
ter fix,  and  no  award  may  ever  be  made(o)(I). 

This  proves  that  neither  of  the  parties  to  such  an  agree- 

(k)  Milnes  v.  Gery,  14  Yes.  jun.  400  ;  Gregory  v.  Mighell,  18  Ves. 
jun.  328  ;  Gourlay  v.  Duke  of  Somerset,  19  Ves.  jun.  429.  See  Cooth 
V.  Jackson,  6  Ves.  jun.  34 ;   Pritchard  v.  Ovey,  1  Jac.  &  Walk.  396. 

(/)    Vide  supra. 

(m)  Code  Civil,  Liv.  3,  Tit.  6,  ch.  1,  s.  1592. 

(n)  Blundell  v.  Brettargh,  17  Ves.  jun.  232  ;  and  see  6  Ves.  jun.  34. 

(0)  Wilks  V.  Davis,  3  Mer.  507. 

(1)  For  the  new  powers  given  to  arbitrators  appointed  by  rule  of 
Court,  or  the  like,  see  3  &  4  W.  4,  c.  42,  s.  39,  40,  41. 

(*276) 


OF  THE  CONSIDERATION.  aet'j 

ment  can  be  compelled  to  nominate  an  arbitrator  imdeJ- 
the  agreement.  The  very  point  was  decided  in  the  late 
case  of  Agar  v.  Macklevv(^).  A  covenant  was  contained 
in  a  lease  that  the  lessees  might  purchase  the  reversion  at 
a  valuation  by  two  persons,  one  to  be  named  by  the  lessor, 
and  the  other  by  the  lessees,  who  were  to  name  an  umpire. 
The  lessor  refused  to  name  an  arbitrator,  and  upon  de- 
murrer it  was  held  that  the  lessees  could  not  file  a  bill 
for  a  specific  performance,  or  to  compel  the  lessor  to 
nominate  an  arbitrator.  But  a  party  may  bind  himself 
by  acquiescing  in  an  award  not  made  in  the  manner  re- 
quired(9).  And  in  a  case  where  the  contract  of  sale  was 
for  twenty-five  years  purchase,  on  an  annual  value  to  be 
fixed  by  a  certain  day,  by  referees  named,  and  the  seller 
prevented  the  valuation  from  being  made,  it  was  held 
that  he  should  not  be  allowed  to  avail  himself  of  his  own 
wrong.  The  Court  would  compel  him  to  permit  the  va- 
luation to  be  made  according  to  the  contract(/). 

(*)SECTION  II. 

Of  the  faihire  of  the  Consideration  before  the  Convey- 
ance. 


I.  A  Vendee,  being  equitable  owner  of  the  estate  from 
the  time  of  the  contract  for  sale,  must  pay  the  considera- 
tion for  it,  although  the  estate  itself  be  destroyed  between 
the  agreement  and   the  conveyance  ;    and  on  the  other 

(p)   V.  C.  9  Nov.  1S25,  MS. ;  2  Sim.  &  Stu.  154,  S.  C. 

(7)  See  17  Ves.  jun.  241. 

(r)   Morse  r.  Merest,  6  Madd.  26. 

vor..  1.  43  (*277) 


ooo  OF  THE  CONSIDERATION. 

hand,  he  will  be  entitled  to  any  benefit  which  may  ac- 
crue to  the  estate  in  the  interim(.s). 

Nevertheless  this  doctrine,  however  it  may  seem  to 
flow  from  the  rules  mentioned  in  the  preceding  chapter, 
has  never  been  decided  till  lately. 

For  in  Stent  v.  Baily(i),  the  Master  of  the  Rolls  said, 
"  If  I  should  buy  a  house,  and  before  such  time  as  by 
the  articles  I  am  to  pay  for  the  same  the  house  be  burnt 
down  by  casualty  of  fire,  I  shall  not  in  equity  be  bound  for 
the  house(w)." 

So  upon  a  sale  of  a  leasehold  for  lives(a;),  previously 
to  the  conveyance,  one  of  the  lives  dropped  ;  and  although 
Lord  Keeper  Wright  decreed  a  specific  performance,  yet 
the  report  states,  that  he  seemed  to  think,  that  if  all  the 
lives  had  been  dropped  before  the  conveyance,  it  might 
have  been  another  consideration,  for  that  the  money  was 
to  be  paid  for  the  conveyance,  and  no  estate  being  left, 
there  could  be  no  conveyance. 

The  case  of  Cass  v.  Rudele,  as  it  is  reported  in  Ver- 
non(?/),  is  an  authority  against  the  dictum  of  the  Master 
(*)of  the  Rolls,  in  Stent  v.  Baily  ;  but  it  appears(2)  that 
the  case  is  mis-stated  in  Vernon,  and  that  the  decree  was 
founded  on  a  good  title  having  been  conveyed. 

In  a  late  case(«),  however,  where  A.  had  contracted  for 
the  purchase  of  some  houses  which  were  burned  down 
before  the  conveyance,  the  loss  was  holden  to  fall  upon 

(s)   See  2  Pow.  on  Contracts,  61. 

(0   2  P.  Wms.  220. 

(m)  As  to  accidents  before  the  contracts,  unknown  to  the  parties,  see 
p.  264. 

(x)  White  V.  Nutt,  1  P.  Wms.  62. 

(y)  2  Vern.  280. 

(«)  See  1  Bro.  C.  C.  167,  n.  ;  and  the  note  to  Raith.  edit,  of  Vernon, 

(a)  Paine  v.  Meller,  6  Ves.  jun.  349 ;  and  see  Poole  v.  Shergoid,  2 
Bro,  C.  C.  118  ;  Revel  v.  Hiissey,  2  Ball.  &  Bentt.  280;  Harford  r. 
Purrier,  1  Madd.  532. 

(*278) 


OF  THE  CONSIDERATION.  gon 

him,  although  the  houses  were  insured  at  the  time  of  the 
agreement  for  sale,  and  the  vendor  permitted  the  insurance 
to  expire  without  giving  notice  to  the  vendee  ;  Lord 
Eldon  being  of  opinion,  that  no  solid  objection  could  be 
founded  on  the  mere  effect  of  the  accident ;  because,  as 
the  party  by  the  contract  became  in  equity  the  owner  of 
the  premises,  they  were  his  to  all  intents  and  purposes(I). 
This  decision  proceeded  on  the  only  principle  upon  w  hich 
it  can  be  supported — that  the  purchaser  was  in  equity 
owner  of  the  estate.  And  therefore,  in  a  case  where  a 
similar  accident  happened  to  an  estate  sold  before  a 
Master,  and  the  report  had  only  been  confirmed  nisi,  the 
loss  was  holden  to  fall  on  the  vendor(6)  :  nor  does  the 
rule  extend  to  evidence  of  the  title  to  the  property(c). 

(*)Lord  Eldon's  decision  in  Paine  v.  Meller,  exactly 
accords  with  the  doctrine  of  the  civil  law.  Indeed  this 
very  case  is  put  in  the  Institutes(^/).  "  Cum  autem  emptio 
et  vendiiio  contracta  sit,  periculum  rei  venditce  statim  ad 
emptorem  pertinet,  tametsi  adhuc  ea  res  empiori  tradita 
non  sit.     Itaque  si — aut  cedes  iotce,  vel  aliqua  ex  parte, 

(b)  Ex  parte  Minor,  1 1  Yes.  jun.  659.  Vide  p.  60.  See  Zaguiy 
r.  Furnell,  2  Camp.  240. 

(c)  Bryant  v.  Busk,  4  lliiss.  1. 

{(l)  III.  xxiv.  3.  Read  Puff",  de  Jure  J^'ntnric  et  Gentium,  1.  5,  c.  6, 
s.  3. 

(I)  la  the  2d  vol.  of  Coll.  of  Decis.  p.  56,  are  the  two  following 
cases  : — The  peril  of  a  house  sold,  and  thereafter  burnt,  was  found  to 
be  the  buyer's,  though  the  disposition  bore  an  obligement  to  put  the 
buyer  in  possession,  because  the  buyer  did  voluntarily  take  possession 
and  rebuild  the  house,  and  likewise  was  enfeofied  before  the  burning. 
Hunter  r.  Wilsons. — A  house  bought  being  burnt,  the  Lords  found, 
that  the  property  being  transferred  to  the  buyer,  by  his  being  enfeotfed, 
and  the  keys  being  ofiered  to  him,  the  accidental  loss  must  follow 
the  buyer,  although  there  was  a  part  of  the  price  unpaid,  there  being 
a  difference  about  it,  which  was  referred  to  some  friends  to  be  deter- 
mined, and  which  they  had  not  done  when  the  burning  happened. 
Atchison  r.  Dickson. 

(*279) 


Q\Q  OF  THE  CONSIDERATION. 

incendio  consiimpioe  fuerint — eniptoris  damnum  est,  cui 
necesse  est,  licet  rem  nonfuerit  nactus,  pretlum  solvere.'''' 

It  is  hardly  necessary  to  remark,  that  although  tlie 
Court  will  enforce  a  specific  performance,  notwithstand- 
ing that  the  estate  is  destroyed,  yet  this  will  not  be  done 
unless  the  title  be  good,  or  the  purchaser  has,  previously 
to  the  accident,  waved  any  objections  to  it. 

The  case  of  Paine  v.  Meller  may  be  considered  as 
having  also  settled,  that  a  purchaser  would  be  entitled  to 
any  benefit  accruing  to  the  estate  after  the  agreement, 
and  before  the  conveyance  ;  for  Lord  Eldon  said,  "  If  a 
man  had  signed  a  contract  for  a  house  upon  that  land 
which  is  now  appropriated  to  the  London  Docks,  and  that 
house  was  burnt,  it  would  be  impossible  to  say  to  the 
purchaser,  willing  to  take  the  land  without  the  house, 
because  much  more  valuable  on  account  of  this  project, 
that  he  should  not  have  it." 

This  also  appears  to  have  been  admitted  in  a  case(6') 
where  a  man  contracted  for  the  purchase  of  a  reversion, 
and  afterwards  the  lives  dropped  before  the  contract  was 
carried  into  execution ;  for,  although  the  Court  did  not 
decree  a  specific  performance,  they  proceeded  entirely  on 
the  laches  and  trifling  conduct  of  the  purchaser,  and 
never  even  hinted  that  the  contract  should  not  be  per- 
formed on  account  of  the  lives  having  dropped. 

Indeed  this  point  flows  from  the  decision  in  Paine  v. 
(*)Meller  ;  and  it  was  the  rule  of  the  civil  law,  that  the 
purchaser  should  benefit  by  the  accretion  to  the  estate 
before  the  conveyance  :  nam  et  commodum  ejus  esse  debet 
cujus  periculum  est(f). 

These  cases  suggest  the  observation  that,  in  agree- 
ments for  the  purchase  of  houses,  some  provision  should 
be  made  for  their  insurance  until  the  completion  of  the 
contract. 

(e)   Spurrier  v.  Hancock,  4  Ves.  jun.  667  ;  and  see  P.  Wms.  62. 
(/)   Inst,  tibi  sup. 
(*280  ) 


OF  THE  CONSIDERATION. 


341 


II.  It  equally  follows,  from  the  general  rule  of  equity, 
by  which  that  which  is  agreed  to  be  done  is  considered  as 
actually  performed,  that  if  a  person  agree  to  give  a  con- 
tingent consideration  for  an  estate,  as  an  annuity  for  the 
life  of  the  vendor,  and  the  vendor  die  before  the  convey- 
ance is  executed,  by  which  event  the  annuity  ceases,  yet 
the  purchaser  will  be  entitled  to  a  specific  performance  of 
his  contract.  This,  we  observe,  is  a  much  stronger  case 
than  that  before  discussed.  There  a  loss  was  actually 
sustained,  and  the  only  question  was,  upon  whom  it 
should  fall.  But  in  this  case,  if  performance  of  the 
agreement  were  not  compelled,  the  parties  would  stand 
in  precisely  the  same  situation  as  before  the  contract ; 
whereas,  by  performing  the  agreement,  the  estate  is  given 
to  the  purchaser,  without  his  paying  any  consideration 
for  it.  A  steady  adherence  to  principle  compels  the 
Court  to  overlook  the  hardship  of  this  particular  case, 
and  the  doctrine  rests  upon  high  authority. 

Thus  in  the  case  of  Mortimer  v.  Cnpper(g),  A.  con- 
tracted to  sell  an  estate  to  B.  for  200/.  and  50/.  a  year  an- 
nuity ;  and  two  days  after  the  contract  was  reduced  into 
writing,  A.  was  found  drowned  :  the  Lord  Chancellor  di- 
rected an  inquiry  as  to  the  value  of  an  annuity  for  the  life 
of  A.,  in  order  to  introduce  the  cjuestion,  whether  an  estate 
(*)being  disposed  of  for  an  annuity,  which  is  a  contingen- 
cy, the  contract  shall  fall  to  the  ground,  if  no  payment  of 
the  annuity  shall  be  made.  He  said,  that  he  thought,  if 
the  price  were  fair,  the  contract  ought  not  to  be  cut  down, 
merely  because  the  annuity,  which  was  a  contingent  pay- 
ment, never  became  payable. 

The  parties  in  the  above  cause  were  so  well  satisfied 
with  the  opinion  of  the  Court,  that  they  never,  it  is  said, 
brought  it  back  for  further  directions(/i). 

ig)    1  Bro.  C.  C.  156.    See  Wyvill  i'.  Bishop  of  Exeter,  1  Price,  292. 
(h)   See  3  Bro.  C.  C.  609,  sed  qu. 

(*281) 


342  ^^  '^'^^^  CONSIDERATION, 

So  in  a  later  cn,se(i),  where  A.  sold  an  estate  by  auc- 
tion, in  consideration  of  a  life  annLiity(l),  the  first  pay- 
ment to  be  made  on  the  25th  of  December  1787  ;  but  in 
case  he  should  die  before  the  29th  of  September  1787, 
up  to  which  time  he  was  to  receive  the  rents,  the  contract 
should  be  void.  A.  died  on  the  1st  of  February  1788, 
after  a  sudden  and  short  illness  of  only  two  days  ;  and 
owing  to  some  delays,  the  conveyances  were  not  executed. 
The  quarter's  payment,  due  at  Christmas,  was  tendered  to 
the  vendor's  agent  by  the  purchaser,  a  few  days  after  it 
became  due ;  but  the  agent  declined  receiving  it,  saying, 
that  the  conveyance  would  be  soon  completed,  and  that  it 
was  not  necessary  for  the  purchaser  to  make  such  payment 
in  the  mean  time.  On  the  first  hearing.  Lord  Thurlow 
said,  he  did  not  see  that  if  an  annuity  was  contracted  for 
why  the  consideration  should  not  be  paid.  It  was,  he  said, 
objected,  that  the  contract  could  not  be  carried  into  execu- 
tion modo  et  forma,  and  that  had  great  weight  where  there 
had  been  no  payment.  His  Lordship  afterwards  made  his 
decree  for  a  specific  performance,  on  payment  of  the  ar- 
rears of  the  annuity,  the  consideration  for  the  purchase  of 
the  estate. 

(*)The  case  of  Paine  v.  Meller  bears  on  this  point  also. 
Lord  Eldon,  in  delivering  judgment,  said,  that  as  to  the 
annuity  cases,  and  all  others,  the  true  answer  had  been 
given  ;  that  the  party  has  the  thing  he  bought,  though  no 
payment  may  have  been  made  ;  for  he  bought  subject  to 
contingency  ;  and  in  the  later  case  of  Coles  v.  Trecothick, 
his  Lordship  expressed  the  same  opinion(/c). 

But  if  in  a  case  of  this  nature,  a  payment  of  the  annuity 
become  due  before  the  death  of  the  vendor,  and  the  pur- 

(t)  Jackson  r.  Lever,  3  Bro.  C.  C.  605. 
(fc)  See  9  Ves.  jun.  246. 

(I)   See  Appendix,  No.  1 3,  for  a  statement  of  the  new  Annuity  Act. 

(*282) 


OF  THE  CONSIDERATION. 


343 


chaser  neglect  to  make  or  tender  it,  he  cannot  insist  upon 
a  specific  performance. 

This  was  decided  by  the  case  of  Pope  v.  Root(/).  A. 
contracted  with  B.  for  the  sale  of  an  estate  to  him,  in  con- 
sideration of  a  life  annuity,  and  the  completion  of  the 
agreement  w^as  delayed  by  the  illness  of  a  mortgagee,  who 
was  to  have  been  paid  off.  Two  days  after  the  time  men- 
tioned for  completing  the  purchase.  A,  met  with  an  acci- 
dent, and  died  within  a  few  days.  By  the  terms  of  the 
contract,  the  first  payment  of  the  annuity  became  due  pre- 
viously to  the  death  oi  A.,  but  it  was  not  paid  or  tendered. 
And  Lord  Chancellor  Bathurst  dismissed  the  bill  for  a 
specific  performance,  and  the  decree  was  aflirmed  in  the 
House  of  Lords(m),  (I). 

The  reader  will  observe,  that  the  decisions  in  the  cases 
of  Mortimer  r.  Capper  and  Jackson  v.  Lever,  do  not  in- 
fringe upon  that  of  the  House  of  Lords,  in  the  prior  case 
of  Pope  V.  Root,  but  reduce  the  rules  on  this  subject  to 
an  equitable  and  uniform  standard ;  for  the  only  case  in 
(*)which  a  purchaser  cannot  require  the  assistance  of 
equity,  is  where  he  has  by  laches  forfeited  his  right  to  its 
aid,  namely,  where  a  payment  of  the  annuity  became  due, 
and  he  neglected  to  pay  or  tender  it. 

To  obviate  all  doubt,  it  seems  advisable  in  agreements 
for  purchase,  where  the  consideration  is  an  annuity  for  the 
life  of  the  vendor,  to  expressly  declare,  that  the  death  of 
the  vendor,  previously  to  the  completion  of  the  contract, 
shall  not  put  an  end  to  it,  although  a  payment  of  the 
annuity  shall  not  have  become  due,  or  having  become  due, 

(/)  7  Bro.  P.  C.  184. 

(m)  See  Lord  Balhurst's  decision  in  Baldwin  r.  Boulter,  1  Bro.  C. 
C.  156,  cited. 

(I)  One  writer  thought,  that  the  inadequacy  of  the  consideration  in- 
fluenced this  decision  ;  see  2  Pow.  on  Contracts,  76 ;  but  it  does  not 
appear  that  any  inadequacy  was  actually  proved. 

(*283) 


344  ^^  "^"^  CONSIDERATION. 

shall  not  have  been  made  or  tendered ;  but  that,  on  the 
contrary,  the  purchaser  shall  be  entitled  to  a  conv.eyance, 
on  payment  of  the  annuity  up  to  the  death  of  the  vendor. 

In  the  cases  just  dismissed,  the  purchaser,  by  the  death 
of  the  vendor,  obtained  the  estate  without  paying  any,  or 
only  a  nominal  consideration  for  it.  Perhaps  a  case  may 
arise  w^here  the  vendor  having  received  the  purchase- 
money,  may,  by  the  death  of  the  purchaser,  be  entitled  to 
retain  the  estate  also,  although  he  may  not  be  his  heir. 
This  case  was  putin  the  argument  of  Burgess  t?.Wheate(w): 
a  purchase,  and  the  money  paid  by  the  purchaser,  who 
dies  without  heir,  before  any  conveyance.  It  was  said,  if 
the  lord  could  not  claim  the  estate,  and  pray  a  convey- 
ance, the  vendor  would  hold  the  estate  he  has  been  paid 
for,  and  keep  tht3  money  too.  Sir  Thomas  Clarke,  in  de- 
livering his  opinion,  said,  that  he  thought  the  lord  could 
not  pray  the  conveyance  ;  to  say  he  could  was  begging 
the  question.  And  as  to  the  vendor's  keeping  both  the 
estate  and  the  money,  it  was  analogous  to  what  equity 
does  in  another  case ;  as  where  a  conveyance  is  made 
(*)prematurely,  before  money  paid,  the  money  is  consi- 
dered as  a  lien  on  that  estate  in  the  hands  of  the  vendee. 
So  where  money  was  paid  prematurely,  the  money  would 
be  considered  as  a  lien  on  the  estate  in  the  hands  of  the 
vendor,  for  the  personal  representatives  of  the  purchaser ; 
which  w^ould  leave  things  in  statu  quo. 

It  may  be  doubted,  however,  whether  this  case,  if  it 
should  ever  arise,  would  be  decided  according  to  Sir 
Thomas  Clarke's  opinion.  Where  a  lien  is  raised  for 
purchase-money  under  the  usual  equity(o),  in  favor  of 
a  vendor,  it  is  for  a  debt  really  due  to  him,  and  equity 
merely  provides  a  security  for  it.     But  in  the  case  under 

(n)  1  Blackst.  123. 
(o)    Vide  infra,  ch.  12. 

(*284) 


OF  THE  CONSIDEUATION.  <*t  r 

consideration,  equity  must  not  simply  give  a  security  for 
an  existing  debt ;  it  must  first  raise  a  debt  against  the 
express  agreement  of  the  parties.  The  purchase-money 
was  a  debt  due  to  the  vendor,  which  upon  principle  it 
would  be  difficult  to  make  him  repay.  What  power  has 
a  court  of  equity  to  rescind  a  legal  contract  like  this  ? 
The  question  might  perhaps  arise  if  the  vendor  was  seek- 
ing relief  in  equity,  but  in  this  case  he  must  be  a  defend- 
ant. If  it  should  be  admitted  that  the  money  cannot  be 
recovered,  then  of  course  he  must  retain  the  estate  also, 
tintil  some  person  appear  who  is  by  law  entitled  to  require 
a  conveyance  of  it. 

It  has  been  decided  that  a  specific  performance  will  be 
decreed  of  a  contract  for  sale  of  a  life  annuity,  although 
the  annuitant  be  dead  before  the  bill  be  filed,  provided 
the  contract  was  a  continuing  one  at  his  death^p).  This 
is  the  converse  of  the  point  decided  in  Mortimer  v.  Cap- 
per, and  that  line  of  cases.  The  Vice-Chancellor  (Sir 
John  Leach)  observed,  that  it  may  now  be  considered  as 
(*)the  settled  law  of  the  court,  by  the  cases  of  Mortimer 
V.  Capper,  and  Jackson  v.  Lever,  and  the  reported  dicta 
of  Lord  Eldon,  especially  in  the  case  of  Coles  v.  Treco- 
thick,  that  if  the  price  of  property  be  an  annuity  for  the 
life  of  the  vendor,  his  death  before  the  conveyance  will 
form  noobjection  to  the  specific  performance  of  the  contract. 
The  vendor  agrees  to  sell  for  a  contingent  price,  and  those 
who  represent  him  cannot  complain  that  the  contingency 
has  turned  out  unfavorably.  The  same  principle  neces- 
sarily applies  to  a  case  ^^  here  the  life  annuity  is  not  the 
price,  but  is  the  subject  of  the  sale.  If  the  annuitant 
happens  to  die  before  the  annuity  is  legally  transferred 
to  the  purchaser,  the  death  of  the  annuitant  can  form  no 
objection    to    the  specific    performance  of   the  contract. 

(p)   Kennedy  r.  Wenham,  6  Madd.  355. 

VOL.  1.  44  (*2S5) 


346 


OF  THE  CONSIDERATION. 


The  purchaser  agrees  to  buy  an  interest  of  uncertain 
duration,  and  he  cannot  complain  that  the  contingency  is 
unfavorable  to  him. 

In  the  above  case,  the  purchaser  was  entitled  to  arrears 
of  the  annuity,  but  the  annuity  was  charged  on  the  pur- 
chaser's own  estate.  It  was  argued  that  by  the  death  of 
the  annuitant,  a  legal  transfer  of  the  annuity  was  no  longer 
necessary  to  the  purchaser,  and  the  only  act  to  be  done 
was  the  payment  of  a  sum  of  money  by  him  to  the  seller, 
and  that  the  seller  ought  therefore  to  have  proceeded  at 
law  and  not  in  equity.  The  Vice-Chaiicellor  said,  that 
a  court  of  equity  entertains  a  suit  for  specific  performance 
by  a  purchaser,  in  ordt^'  to  give  him  the  very  subject  of 
his  contract ;  and  although  the  demand  of  a  vendor  be 
merely  for  a  sum  of  money,  it  will  entertain  a  similar  suit 
for  him,  upon  the  principle  that  the  remedies  ought  to  be 
mutual.  If  the  death  of  a  life-annuitant  were  to  happen 
at  such  a  time  that  a  purchaser  in  effect  took  no  benefit 
under  his  contract,  which  might  well  happen  where  his 
title  was  to  commence  at  a  future  time,  there  it  might  be 
(*)made  a  question  whether,  as  at  the  time  of  the  bill  fil- 
ed a  purchaser  could  file  no  bill  in  equity,  the  principle  of 
mutual  remedy  could  enable  the  vendor  to  file  such  a  bill. 
But  that  is  not  this  case  ;  here  the  purchaser  has  an 
equitable  title  to  the  arrears  of  the  annuity  between  the 
time  of  his  purchase  and  the  death  of  the  annuitant, 
which  would  in  principle  now  support  a  bill  on  his  part 
for  specific  performance,  although  the  facts  of  the  case 
would  not  make  such  a  bill  advantageous  to  him.  He 
considered  this  case,  therefore,  strictly  a  case  of  mutual 
remedy,  so  as  to  entitle  the  vendor  to  file  a  bill  for  spe- 
cific performance  ;  and  it  appeared  to  him  to  make  no 
difference  in  principle  that  the  annuity  being  charged 
upon  the  estate  of  the  purchaser  himself,  he  could  prac- 

(*286) 


OF  THE  CONSIDERATION. 


347 


tically  satisfy  his  demand  for  arrears,  by  retainer,  without 
the  necessity  of  a  legal  grant(180). 

(180)  Where  Jones  agreed  to  attend  the  sale  of  Hubbard's  land, 
which  was  to  be  sold  ;  and  if  it  should  be  struck  off  to  him,  that  he 
would  convey  the  land  to  the  latter  upon  the  payment  of  the  money 
within  twelve  months.  He  became  the  purchaser  ;  but  before  the  ex- 
piration of  the  12  months  Hubbard  died.  The  Court  rescinded  the 
contract  upon  making  a  just  compensation,  which  was  the  principal  and 
interest.     Jones  v.  Hubbard,  6  Munf.  R.  251, 


[  348  ] 


r)CHAPTER  YI. 

OF  THE  PARTIAL  EXECUTION  OF  A  CONTRACT,  WHERE 
A  VENDOR  HAS  NOT  THE  INTEREST  WHICH  HE  PRE- 
TENDED TO  SELL  ;  AND  OF  DEFECTS  IN  THE  QUANTITY 
AND  QUALITY  OF  THE  ESTATE. 

SECTION  I. 
Where  the  Vendor  has  not  the  Interest  which  he  s'old. 


I.  Where  a  person  sells  an  interest,  and  it  appears 
that  the  interest  which  he  pretended  to  sell  was  not  the 
true  one  ;  as,  for  example,  it  was  for  a  less  number  of 
years  than  he  had  contracted  to  sell,  the  purchaser  may 
consider  the  contract  at  an  end,  and  bring  an  action  for 
money  had  and  received,  to  recover  any  sum  of  money 
which  he  may  have  paid  in  part  performance  of  the 
agreement  for  the  sale  :  and  the  vendor  offering  to  make 
an  allowance  pro  tanto,  will  make  no  difference  ;  it  is 
sufficient  for  the  plaintiff  to  say,  it  is  not  the  interest 
which  1  agreed  to  purchase(«)(181). 

(a)  Farrer  v.  Nightingale,  2  Esp.  Ca.  639  ;  and  see  Hearn  v.  Torn- 
lin,  Peake's  Ca.  192  ;  Thomson  v.  Miles,  1  Esp.  Ca.  184  ;  Mattock  r. 
Hunt,  B.  R.  15  Feb.  1806  ;  Hibbert  v.  Shee,  1  Canipb.  Ca.  113.  See 
also  Duffel  v.  Yv'ilson,  ib.  401  ;  and  see  ch.   8,  infra. 

(181)  See  Weaver  v.  Benlley,  1  Caines'  Rep.  47.  ;  wherein  it  was 
held,  that  the  purchaser  might  maintain  assumpsit  to  recover  back  the 
purchase  aioney,  although  the  contract  was  under  seal.      See   also, 

(*287) 


OF  THE  PARTIAL  EXECUTION  OF  A  CONTRACT. 


349 


But  in  a  late  case(6)  at  nisi  piius,  where  the  agreement 
was  to  sell  "  the  unexpired  term  of  eight  years'  lease  and 
good  will,"  &c.  and  it  ajjpeared  that,  at  the  date  of  the 
agreement,  the  unexpired  term  in  the  lease  was  only 
seven  years  and  seven  months,  Lord  Ellenborough  said, 
(*)that  the  parties  could  not  be  supposed  to  have  meant  that 
there  was  the  exact  term  of  eight  years  unexpired,  neither 
more  nor  less  by  a  single  day.  The  agreement  must, 
therefore,  receive  a  reasonable  construction,  and  it  seems 
not  unreasonable  that  the  period  mentioned  in  the  agree- 
ment should  be  calculated  from  the  last  preceding  day 
when  the  rent  was  payable,  and  including,  therefore,  the 
current  half  year.  Any  fraud  or  material  misdescription, 
though  unintentional,  would  vacate  the  agreement,  but 
the  defendant  might  here  have  had  substantially  what  he 
agreed  to  purchase. 

Where  a  house  was  sold  by  auction,  and  no  notice  was 
taken  of  a  fee-farm  rent  of  5s.  4f/.  charged  upon  that 
and  upon  other  property,  to  a  very  great  amount,  the 
purchaser  brought  an  action  for  breach  of  the  agreement, 
and  Sir  Vicary  Gibbs  for  the  vendor,  the  defendant,  de- 
clined arguing  the  point(c). 

And  where  a  particular  described  the  subject  of  sale  to 
be  an  annuity  of  so  much,  payable  out  of  the  tolls  of 
Waterloo  Bridge,  the  Court  considered  that  the  purchaser 
would  make  some  inquiry  as  to  the  annuity ;  but  as  the 
Bridge  Act  did  not  speak  of  any  power  to  redeem  the 
annuities  to  be  granted,  and  the  annuity  teas  made  subject 

(6)  Behvorlh  r.  Hapell,  4  Camp.  Ca.  140. 

(c)  Turner  v.  Beaurain,  Sitt.  Guildh.  cor.  Lord  Kllenborough,  C.  J. 
2d  June  1806  ;  and  see  Barnwell  v.  Harris,  1  Taunt.  430. 

D^Utricht  V.  Melchor,  1  Dall.  428.  Gillet  v.  Maynard,  5  Johns.  Rep. 
85.  Judsonv.  Wass,  11  Johns.  Rep.  627.  Raymond  v.  Beamard,  12 
Johns.  Rep.  274.  Putnam  v.  Westcot,  19  Johns.  Rep.  73.  Lijon  v. 
dmiable,  4  Conn.  Rep.  350.      Hoioes  v.. Barker,  3  Johns.  Rep.  606. 

(*2eS) 


350  ^^  THE  PARTIAL  EXECUTION 

to  redemption,  it  was  held  that  the  contract  was  not  bind- 
hig  on  the  purchaser  ;  and  the  Court  was  of  opinon,  that 
sellers  should  be  strictly  bound  to  disclose  the  real  nature 
of  the  subject  of  the  contract((/). 

But,  notwithstanding  that  the  vendor  has  a  different 
interest  to  what  he  pretended  to  sell,  equity  will,  in  some 
cases,  compel  the  purchaser  to  take  it. 

Thus,  although  the  estate  is  charged  with  trifling  incum- 
brances, which  cannot  be  discharged,  yet  it  seems  that, 
(*)under  some  circumstances,  if  a  satisfactory  indemnity 
can  be  given  against  them,  equity  will  compel  a  specific 
performance(e)(I)(182).  This,  however,  is  evidently  a 
jurisdiction  which  cannot  be  too  cautiously  exercised.  In 
a  late  case.  Lord  Eldon  said,  that  he  did  not  apprehend 
that  the  Court  could  compel  the  purchaser  to  take  an  in- 
demnity, or  the  vendor  to  give  it(/)(183). 

So,  although  the  vendor  may  not  be  entitled  to  the  es- 
tate for  the  number  of  years  which  he  contracted  to  sell, 
3'et,  if  the  deficiency  were  not  great,  equity  would  certain- 
ly decree  a  performance  of  the  contract  at  a  proportiona- 
ble price  (^). 

{d)  Coverley  v.  Burrell,  M.  T.  1821.  B.  R.  MS. 

(e)  Howland  v.  Norris,  1  Cox,  59  ;  Hasley  v.  Grant,  Horniblow  v. 
Shirley,  13  Ves.  jun.  73,  81  ;  see  2  Swanst.  223  ;  and  see  Barnwell  v. 
Harris,  1  Taunt.  430 ;  see  also  Hays  v.  Bailey,  stated  in  ch.  7.  post. 
Wood  V.  Bernal,  19  Ves.  220. 

(/)   See  1  Ves.  &  Beam.  225. 

(g-)  See  Guest  v.  Homfray,  5  Ves.  jun.  818  ;  and  see  Hanger  v. 
Eyles,  21  Vin.  Abr.  (A),  pi.  1  ;  2  Eq.  Ca.  Abr.  689  ;  see  also  10  Ves. 
jun.  306  ;   13  Ves.  jun.  77. 

(I)  Although  it  seems  evident  that  this  equity  would  be  enforced  in 
a  case,  for  instance,  like  Turner  v.  Beaurain,  yet  the  cases  referred  to 
are  not  decisive  authorities  in  favor  it. 

(182)  See  King  v.  Bardeau,  6  Johns.  Ch.  Rep.  38.  Ten  Broeck  v. 
Livingston,  1  Johns.  Cha.  Rep.  357.  363. 

(183)  See  Boyle  v,  Roivand,  3  Des.  655. 
(*289) 


OF  A  CONTRACT. 


351 


But  if  the  number  of  years  be  considerably  less  than 
the  vendor  pretended  to  sell,  equity,  so  far  from  interfer- 
ing in  his  favor,  will  assist  the  purchaser  in  recovering  any 
deposit  which  he  may  have  paid. 

Thus,  in  Long  v.  Fletcher(/i),  A.  pretending  he  had  a 
term  of  sixteen  years  to  come,  in  a  house,  agreed  to  sell  it 
to  B.,  and  jB.  paid  100/.,  part  of  the  consideration  money, 
down.  B.  entered,  but  finding  that  A.  had  only  a  term  of 
six  years  in  the  house,  brought  his  bill  to  have  an  account, 
his  money  refunded,  and  the  bargaiu  set  aside  ;  and  ac- 
cordingly B.  was  decreed  to  account  for  the  profits,  and 
the  consideration-  money  to  be  refunded,  and  B.,  upon  his 
own  account,  to  have  tenant  allowances  made  him. 

So,  if  a  purchaser  contract  for  what  is  stated  to  be  an 
(*)original  lease,  and  it  turn  out  to  be  an  under-lease  for 
the  whole  term,  wanting  a  few  days,  it  should  seem  that 
equity  would  not  compel  the  purchaser  to  perform  the 
contract.  It  is  impossible,  from  the  nature  of  the  thing, 
to  make  any  compensation  for  the  reversion  outstanding, 
and  yet  it  may  become  very  valuable  ;  and  it  is  of  great 
importance  to  a  purchaser  of  a  lease  not  to  have  any  third 
person  stand  between  him  and  the  owner  of  the  inheri- 
tance (?'). 

It  frequently  happens  that  a  contract  for  a  leasehold 
estate  is  not  carried  into  execution  at  the  time  appointed, 
and  the  vendor  continues  in  possession.  The  estate,  of 
course,  daily  decreases  in  value,  and  a  question  constantly 
arises,  whether  the  purchaser  shall  be  compelled  to  pay 
the  full  price  originally  agreed  to  be  given  for  the  estate, 
or  what  arrangement  shall  be  made  between  the  parties. 

In  a  modern   case(j ),    where    this   point   arose,    the 

{h)  2  Eq.  Ca.  Abr.  5.  pi.  4. 

(t)  Vide  infra,  where  an  underlease  will  be  enforced  against  a  ven- 
dor under  an  agreement  to  assign,  div.  II. 

{j)  Dyer  v.  Hargrave,  10  Ves.  jun.  605.  See  and  consider  King  r. 
AVightman,  1  Anst.  80  ;  Fenton  v.  Browne,  14  Yes.  jun.  144. 

(*290) 


352 


OF  THE  PARTIAL  EXECUTlOiN 


Master  of  the  Rolls  said,  the  reasonable  course  which  he 
should  adopt,  was,  that  for  the  time  elapsed  before  the 
execution  of  the  agreement,  in  consequence  of  the  pen- 
dency of  the  suit,  interest  should  be  paid  by  the  purchaser, 
and  a  rent  should  be  set  upon  the  premises  in  respect  of 
the  possession  of  the  vendor. 

This  rule  at  once  provides  for  the  interest  of  both  par- 
ties, and  accords  with  the  maxim  of  equity,  by  which  that 
which  is  agreed  to  be  done,  is  considered  as  actually  per- 
formed. The  purchase-money,  from  the  time  of  the  con- 
tract, belongs  to  the  vendor,  who  is  entitled  to  interest  on 
it  while  it  is  retained  by  the  purchaser.  'The  estate  from 
the  same  time  belongs  to  the  purchaser,  who  is  entitled  to 
a  rent  for  it  while  it  is  occupied  by  the  vendor. 

(*)In  Cuthbert  v.  Baker(/c),  the  quit  rents  of  a  manor 
were  stated  in  the  particulars  of  sale  to  be  21.  a  year,  and 
they  amounted  to  only  305.  a  year  ;  but  a  performance  in 
specie  was  decreed,  and  it  was  referred  to  the  Master  to 
ascertain  what  compensation  should  be  allowed  in  respect 
of  the  deficiency. 

And  it  has  been  held  that  quit  rents  are  subjects  of 
compensation,  probably  because  they  may  be  regarded  as 
incidents  of  tenure(/). 


Where  an  estate  is  sold  by  auction,  or  before  a  Master, 
in  lots,  and  the  vendor  has  not  a  title  to  all  the  lots  sold, 
equity  will  compel  the  purchaser  to  take  the  lots  to  which 
a  title  can  be  made,  if  they  are  not  complicated  with  the 
rest ;  and  will  allow  him  a  compensation  pro  tanto. 

Thus  in  Poole  v.  Shergold(m),  a  man  became  the  pur- 
chaser of  several  lots  of  an  estate,  to  two  of  which  no  title 
could   be  made.      And  upon   the  Master's  report  Lord 

{k)  Reg.  Lib.  A.  1790,  fol.  442. 

{I)  Esdaile  r.  Stephenson,  1  Sim.  &  Stu.  122. 

(m)   2  Bro.  C  C.  118  ;   1  Cox,  273.     See  6  Yes.  jun.  676. 

(*291) 


OF  A  CONTRACT. 


353 

Kenjon  said,  he  must  take  it  for  granted,  these  two  lots 
were  not  so  complicated  with  the  others,  as  to  entitle  the 
purchaser  to  resist  the  whole ;  and  therefore  decreed  a 
specific  performance  ^ro  tanto(\S^), 

But  if  a  title  cannot  be  made  to  a  lot  w'hich  is  compli- 
cated with  the  rest,  the  purchaser  will  not  be  compelled 
to  accept  the  lots  to  which  a  title  can  be  made. 

Thus,  in  the  same  case.  Lord  Kenjon  said,  if  a  pur- 
chase was  made  of  a  mansion-house  in  one  lot,  and 
farms,  fee.  in  others,  and  no  title  could  be  made  to  the  lot 
containing  the  mansion-house,  it  would  be  a  ground  to 
rescind  the  whole  contract. 

Lord  Kenyon  seems  afterwards  to  have  gone  a  step 
(*)farther,  and  to  have  been  of  opinion,  that  such  a  con- 
tract ought  not  in  any  case  to  be  enforced  against  a  pur- 
chaser. 

For  sitting  in  a  court  of  law(r/),  he  held,  that  the  per- 
formance of  a  contract  for  the  sale  of  some  houses  ou^ht 
not  to  be  compelled,  as  a  title  could  not  be  made  to  all  the 
houses  bought ;  and  this,  notwithstanding  they  were  sold 
in  separate  lots.  He  said,  when  a  party  purchases  several 
lots  of  this  description  at  an  auction,  it  must  be  taken  as 
an  entire  contract ;  that  is,  that  the  several  lots  are  pur- 
chased with  a  view  of  making  them  a  joint  concern.  The 
seller,  therefore,  shall  not,  in  case  of  any  defect  in  his  title 
to  one  part,  be  allowed  to  abandon  that  part  at  his  pleasure, 
and  to  hold  the  purchaser  to  his  bargain  for  the  residue. 
From  such  a  doctrine  much  injustice  might  result,  as  the 
part  to  which  a  seller  could  not  make  a  title  might  be  so 
circumstanced,  that  without  it  the  other  parts  would  be  of 

(n)  Chambers  v.  Griffiths,  1  Esp.  Ca.  149. 


(184)  See  Van  Eps  v.  Coiyoration  of  Schenectady,  12  Johns.  Rep. 
436.  Sioddart  v.  Smith,  5  Binn.  355.  Waters  v.  Travis,  on  appeal, 
9  Johns.  Rep.  450.  Oahorne  v.  Bremar,  1  Des.  4S6.  See  .'ilso,  Hep- 
burn V.  ^nld,  5  Cranch,  262.     Ch-eemcalt  v.  Born,  3  Ycates,  6. 

VOL.   I.  46  (*292) 


554  ^^  "^^^  PARTIAL  EXECUTION 

little,  perhaps  of  no  value  ;  or  it  might  leave  it  in  the 
power  of  the  seller,  or  any  other  person  who  might  come 
to  the  possession  of  such  part,  to  deprive  the  purchaser  of 
everj  degree  of  enjoyment  or  beneficial  use  of  that  part 
which  he  had  purchased.  He  added,  that  a  case  under 
circumstances  precisely  similar  to  the  present,  had  been 
decided  before  him,  when  Master  of  the  Rolls.  That,  on 
that  case  coming  before  him,  he  had  found  that  his  prede- 
cessor there.  Sir  Thomas  Sewell,  had  ruled  contrary  to 
the  doctrine  he  was  now  delivering ;  but  that  he  at  the 
Rolls  had  overruled  Sir  Thomas  Sewells'  determination, 
with  the  general  approbation  of  the  bar. 

And  the  Court  of  Exchequer  appear  to  have  been  of  the 
same  opinion  as  Lord  Kenyon.  For  in  a  case(o),  where 
a  person  purchased  several  lots  of  an  estate  sold  under 
a  decree  of  the  Court,  and  the  biddings  were  afterwards 
opened  as  to  one  lot,  the  Court  were  of  opinion,  that 
(*)he  had  an  option  to  open  the  biddings  as  to  the  rest  of 
the  lots. 

In  a  late  casefj?),  in  which  most  of  the  authorities  on 
this  head  were  cited,  the  cases  of  Chambers  v.  Griffiths 
and  Boyer  v.  Blackwell  were  not  noticed  ;  but  I  learn  that 
Lord  Eldon  afterwards  mentioned  from  the  bench  that  he 
had  met  with  the  case  of  Chambers  v.  Griffiths ;  and  he 
desired  it  to  be  understood,  that  he  was  not  of  the  same 
opinion  as  Lord  Kenyon  ;  and,  in  a  still  later  case,  Lord 
Eldon  expressed  an  opinion,  that  Lord  Kenyon's  rule 
would  not  be  followed  unless  it  could  be  shown  that  there 
was  an  understanding  that  the  purchaser  was  not  to  take 
any  of  the  lots  unless  he  could  obtain  them  a]l(^). 

The  rules  laid  down  in  Poole  v.  Shergold  must  therefore 
still  be  considered  the  law  of  the  Court.     It  is  indeed  re- 

(o)  Boyer  v.  Blackwell,  3  Anstr,  657. 

{p)  Drewe  v.  Hanson,  6  Vcs.  jun.  675. 

(q)   16  July  1816,  MS.     See  Lewin  v.  Guest,  1  Russ.  325. 

(*293) 


OF  A  CONTRACT. 


355 


markable,  that  in  Chambers  v.  Griffiths,  Lord  Kenj'oii 
should  have  overlooked  his  decision  in  Poole  v.  Shergold  ; 
more  especially  as  it  in  a  great  measure  obviated  the  ob- 
jections w^hich  he  made  to  a  partial  execution  bj  a  court 
of  equity  of  a  contract  for  purchase  of  several  lots  of  an 
estate.  The  doctrine,  however,  could  not  apply  to  an 
action  at  lavi',  because  although  the  same  man  purchase 
several  lots  at  an  auction,  yet  a  distinct  contract  arises  up- 
on each(r).  Chambers  v.  Griffiths  cannot  tiierefore  be 
maintained  as  an  authority  even  for  the  legal  rule(185). 

Where  an  estate  is  sold  in  one  lot,  either  by  private 
contract,  or  public  sale,  and  the  vendor  has  not  a  title  to 
the  whole  estate,  he  cannot  enforce  the  contract  at  law(5), 

(r)  Emmerson  v.  Heelis,  2  Taunt.  38  ;  James  v.  Shore,  1  Stark. 
426  ;  see  Baldey  v.  Parker,  2  Barn.  &  Cress.  37 ;  3  Dowl.  &  Ryl. 
220.  S.  C. 

(s)  Tomkins  v.  White,  3  Smith,  435. 

(185)  See  Hspburn  v.  Jluld,  ut  supra.  Osborne  v.  Bremar,  1  Des. 
4S6.  Van  Ejjs  v.  Corporation  of  Schenectady,  12  Johns.  Rep.  436, 
443.  and  3  Yeates,  8.  Nor  in  equity.  See  Hepburn  v.  Auld,  5  Cranch, 
262,  276.     Butler  v.  O'Hear,  1  Des.  382. 

In  Croome  u.  Lediard,  2  M.  &  K.  R.  in  Ch.  251,  by  a  written 
agreement  between  plaintiff  and  defendant,  the  plaintiff  agreed  to  sell 
and  the  defendant  to  purchase,  upon  the  terms  stated,  the  Leigh  estate  : 
and  by  the  same  agreement  the  defendant  agreed  to  sell  another  estate 
called  the  Haresfield  estate ;  and  eventually  the  defendant  was  unable 
to  make  a  good  thle  to  the  latter  estate  :  held,  that  the  plaintifl"  was  en- 
titled to  a  specific  performance  of  the  "latter  contract.  But  evidence 
aliunde  was  not  admitted  to  show  that  the  agreement  was  to  take  effect 
on  the  basis  of  a  mutual  exchange.  The  Lord  Chancellor  considered 
the  agreements  as  distinct  and  wholly  independent  of  each  other.  This 
cnse  was  distinguished  from  other  cases,  such  as  Poole  i".  Shergold, 
Knatchbull  v.  Grueber  ,  Dalby  v.  Pullen,  Price  v.  Price,  Cassamajor  v. 
Strode ;  because  t  here,  the  question  was  between  a  vendor  and  pur- 
chaser, in  this  c  ase,  each  party  was  both  buyer  and  seller.  Where  two 
estates  are  confer  minous,  or  where  there  was  a  mixed  use  and  enjoy- 
ment of  the  estates,  as  in  the  case  of  an  easement  by  one  party  over 
the  property  of  the^tther,  the  contract  depending  on  such  a  mutuality  of 
purchase  and  sale  might  well  exist. 


356 


OF  THE  PARTIAL  EXECUTION 


unless  perhaps  a  separate  value  was  put  on  different  parts 
of  the  estate,  in  which  case  the  contract  in  favor  of  jus- 
tice (*)inay  be  considered  distinct.  At  law  neither  a  ven- 
dor can,  on  an  entire  contract,  recover  part  of  the  pur- 
chase-money, where  he  cannot  make  a  title  to  the  whole 
estate  sold  ;  nor  would  a  purchaser  be  suffered  in  a  court 
of  law  to  say,  that  he  would  retain  all  of  which  the  title 
was  good,  and  vacate  the  contract  as  to  the  rest :  such 
questions  being  subjects  only  for  a  court  of  equity(/). 

But  if  the  part  to  which  the  seller  has  a  title  was  the 
purchaser's  principal  object,  or  equally  his  object  with  the 
part  to  which  a  title  cannot  be  made,  and  is  itself  an  in- 
dependent subject,  and  not  likely  to  be  injured  by  the  other 
part,  equity  will  compel  the  purchaser  to  take  it  at  a  pro- 
portionate price  ;  and  in  these  cases  it  will  be  referred  to 
the  Master,  to  inquire,  "  whether  the  part  to  which  a 
title  cannot  be  made,  is  material  to  the  possession  and 
enjoyment  of  the  rest  of  the  estate(M)." 

Thus  in  a  case(.i*)  before  Sir  Thomas  Sewell,  a  man 
who  had  contracted  for  the  purchase  of  a  house  and  wharf, 
was  compelled  to  take  the  house,  although  he  could  not 
obtain  the  wharf;  and  it  appeared  that  his  object  was  to 
carry  on  his  business  at  the  wharf  (I)  ;  which,  Lord  Ken- 
yon  said,  was  a  determination  contrary  to  all  justice  and 
reason  (i/). 

(/)  Johnson  v.  Johnson,  3  Bos.  &  Pull.  162. 

(«)  M'Queenv.  Farquhar,  11  Ves.  jun.  467;  Reg.  Lib.  B.  1804. 
fol.  1095;  KnatchbuU  v.  Grueber,  1  Madd.  153;  Bowyer  v.  Bright, 
13  Price,  698. 

(.c)  See  6  Ves.  jun.  678  ;  7  Ves.  jun.  270,  cited  ;  and  see  M'Queen 
V.  Farquhar,  11  Ves.  jun.  467. 

(y)    1  Cox,  274. 


(I)  This  case  has  been  frequently  disapproved  of,  and  would  not  have 
been  so  decided  at  this  day.  See  1  Esp.  Ca.  152  ;  6  Ves.  jun.  679  ; 
13  Ves.  jun.  78.  228.  427.  In  Stewart  v.  Alliston,  1  Mer.  26,  Lord 
Eldon  expressed  hinaself  much  more  strongly  agalf^st  the  principle  of 
these  cases,  than  appears  by  the  report. 

(*294) 


OF  A  CONTRACT.  gc^ 

And  in  the  late  case  of  Drewe  v.  Hanson(2:),  which 
(*)arose  upon  the  sale  of  an  estate,  together  with  the  va- 
luable corn  and  hay  tithes  of  the  whole  parish,  it  appeared, 
that  the  principal  object  of  the  purchaser  was  the  corn 
tithes,  and  that  half  the  hay  tithe  belonged  to  the  vicar, 
and  the  other  half  was  commuted  for  by  a  payment  of  2/. 
per  annum,  the  nature  of  which  did  not  appear.  Upon 
the  facts,  as  they  then  appeared.  Lord  Eldon  would  not 
give  judgment,  but  he  seemed  clearly  of  opinion  that  the 
hay  tithe,  if  not  of  great  extent  or  of  such  a  nature 
as  to  prejudice  the  corn  tithe,  was  a  subject  for  compen- 
sation :  but  otherwise  not,  as  the  purchaser  would  not 
get  the  thing  which  was  the  principal  object  of  his  con- 
tract («). 

In  a.case(6)  often  cited,  where  a  man  had  articled  for 
the  purchase  of  an  estate  tithe-free,  but  which  afterwards 
appeared  to  be  subject  to  tithes.  Lord  Thurlow,  it  was 
said,  decreed  a  specific  performance,  although  the  pur- 
chaser proved,  that  his  object  was  to  buy  an  estate 
tithe-free.  This,  however,  to  use  Lord  Eldon's  words(c), 
is  a  prodigious  strong  measure  in  a  court  of  equity  to 
say  as  a  discreet  exercise  of  its  jurisdiction,  that  the 
contract  shall  be  performed,  the  defendant  swearing  and 
positively  proving  that  he  would  have  had  nothing  to  do 
with  the  estate  if  not  tithe-free.  But  it  now  appears 
from  the  report  of  the  case,  published  by  Mr.  Cox,  that 
the  estate  was   subject  only  to  a  money-payment  of   14/. 

(z)  6  Ves.  jun.  675. 

(a)  See  Vancouver  v.  Bliss,  1 1  Yes.  jun.  458  ;  Stapylton  v.  Scott, 
13  Ves.  jun.  425. 

(b)  Lord  Stanhope's  ca?e,  6  Ves.  jun.  678,  cited  ;  Lowndes  v.  Lane, 
2  Cox,  363  ;  6  Ves.  jun.  676,  cited  ;  but  see  Pincke  r.  Curteis,  cited 
ibid. ;  and  see  Ro^e  v.  Calland,  5  Ves.  jun.  186  ;  "VVallinger  v.  Hilbert, 
1  Mer.  104. 

(c)  See  6  Ves.  jun.  679  ;  and  sec  17  Ves.  jun.  280. 

(*295) 


qcg  OF  THE  PARTIAL  EXECUTION 

in  lieu  of  tithes(6?).  And  in  the  case  of  Ker  v.  Clo- 
bery(*)(e),  where  the  estate  was  sold  before  the  Master, 
and  the  particulars  stated,  that  "  the  whole  of  the  above 
lands  are  only  subject  to  a  modus  for  tithe  hay  of  21. 
per  annum,"  Lord  Eldon  was  of  opinion,  that  a  purchaser 
of  an  estate  stated  to  be  tithe-free,  or  subject  to  a  modus, 
could  not  be  compelled  to  take  it  with  a  compensation, 
if  the  estate  is  not  tithe-free.  His  Lordship  said,  that 
he  had  so  decided  in  a  case  from  Yorkshire,  in  which  he 
had  told  the  purchaser,  if  he  would  take  the- estate  with 
a  compensation,  he  must  undertake  to  pay  the  tithes  to 
the  vendor.     The  question  therefore  is  now  at  rest(  186). 

Where  an  estate  is  sold  tithe-free,  the  question  whether 
tithe-free  is  not  a  question  of  title  but  of  fact :  if  the  sale 
was  of  lands  and  of  tithes,  then  the  matter  of  tithe  would 
be  matter  of  t\i\e(f). 

In  a  late  case,  upon  a  sale  before  a  Master,  where  the 
particular  stated  about  thirty-three  acres  to  be  tithe-free, 
Lord  Eldon  held,  that  the  principle  laid  down  in  Ker  v. 
Clobery  did  not  apply(o). 

In  a  case,  where  the  estate  was  described  as  let  on  a 
ground-lease  at  so  much  per  annum,  and  it  turned  out 
that  the  lease  was  at  rack-rent.  Lord  Eldon  would  not 
support  the  sale,  although  there  was  the  usual  clause,  that 
errors  or  mis-statements  should  not  annul  the  sale(/i). 
So  when  the  house  was  described  as  brick  built,  although 

{d)   Rowland  v.  Nonis,  1  Cox,  59. 
(e)  26  Mar.  1814,  MS. 
(/)   Smith  V.  Lloyd,  2  Swanst.  224,  n. 

(g-)  Binks  V.  Lord  Rokeby,  E.  T.  1818.  MS. ;  S.  C.  2  Swanst.  222; 
and  see  Smith  v.  Tolcher,  4  Russ.  302. 
(/i)  Stewart  v.  Alliston,  1  Mer.  26. 

(186)   See  Waters  v.  Travis,  9  Johns.   Rep.  450,  465.   on  appeal. 
Sloddart  v.  Smith,  5  Binn.  356.     Greemoalt  v.  Born,  3  Yeates,  6. 
(*296) 


OF  A  CONTRACT.  orn 

in  part  built  of  lath  and  plaster,  and  there  was  no  party 
wall ;  the  same  result  followed(2'). 

Where  the  particular  described  the  estate  as  four  hun- 
dred and  twelve  acres,  two  hundred  and  twentj-seven  of 
(*)which  were  tithe-free,  paying  a  very  small  modus  ;  and 
it  appeared  that  part  of  the  estate  represented  to  be  tithe- 
free  was  subject  to  tithes  which  the  owner  was  willing  to 
sell.  Lord  Eldon  said,  that  the  allegation  was,  that  two 
hundred  and  twenty-seven  acres  "  are  tithe-free,  paying 
a  very  small  modus,"  not  stating  a  positive  exemption 
from  tithes ;  and  where  the  contract  is  to  sell  an  estate 
tithe-free,  the  vendor  not  representing  himself  to  have 
title  to  the  tithes,  without  entering  into  the  question, 
whether  the  purchaser  ought  to  be  compelled  to  take  it  if 
not  tithe-free ;  yet,  if  he  chooses  to  take  it,  he  cannot 
compel  the  vendor  to  buy  the  tithes,  if  there  is  a  positive 
title  to  them  in  pernancy  ;  all  he  can  have  is  compensa- 
tion(A;)(187). 

If  a  purchaser,  with  notice  of  a  defect  in  a  title  to  a 
part  of  the  estate  which  is  complicated  with  the  rest,  or 
which  is  the  principal  object  of  his  contract,  take  pos- 
session of  the  estate,  and  prevent  the  vendor  from  making 
a  title,  he  will  be  compelled  to  perform  the  contract, 
notwithstanding  that  he  insisted  upon  the  objection  at 
the  time  he  entered (/).  A  deduction  from  the  price 
will,  however,  be  allowed  him,  although  the  situation  of 
the  land  will  not  perhaps  be  taken  into  consideration. 

A  purchaser  will  not  be  compelled  to  take  an  undivided 
part  of  the  estate  contracted  for.  Therefore,  if  a  man 
contract  with  tenants  in  common  for  the  purchase  of  their 

(i)   Powell  r.  Doubble,  MS.  supra,  p.  42. 

(A;)  Todd  v.  Gee,  17  Ves.  jun.  273  ;  qu.  how  is  the  compensation  to 
be  estimated?  See  Ker  v,  Clobery,  supra. 

(/)   See  Calcraft  v.  Roebuck,  1  Ves.  jun.  221. 

(187)  See  Wainwright  v.  Read,  1  Des.  673. 

(*297) 


QgQ  OF  THE  PARTIAL  EXECUTION 

estate,  and  one  of  them  die,  the  survivors  cannot  compel 
the  purchaser  to  take  their  shares,  unless  he  can  obtain 
the  share  of  the  deceased. 

And  in  a  case  where  under  a  decree  a  person  pur- 
chased two  sevenths  of  an  estate  in  one  lot,  and  a  good 
title  was  only  made  to  one  seventh,  the  purchaser  was 
(*)alIowed  to  rescind  the  contract  as  to  the  whole  of  the 
lot(m). 

Nor  will  a  purchaser  be  compelled  to  take  a  leasehold 
estate,  for  however  long  a  term  ii  may  be  holden,  where 
he  has  contracted  for  a  freehold  (I).  Lord  Alvanley 
expressed  a  clear  opinion  on  this  point(w) ;  and  it  has 
since  been  expressly  determined  by  Sir  William  Grant, 
in  a  case(o)  where  the  vendor  was  entitled  to  a  term  of 
four  thousand  years,  vested  in  a  trustee  for  him,  and  also 
to  a  mortgage  of  the  reversion  in  fee  expectant  upon  the 
term  which  was  vested  in  himself  and  forfeited,  but  not 
foreclosed.  Th6  person  claiming  under  the  mortgagor  of 
the  reversion  refused  to  release,  and  thereupon  the  bill 
was  dismissed. 

Neither  is  a  purchaser  compellable  to  accept  a  copyhold 
estate  in  lieu  of  a  freehold (jy)(ll). 

(m)  Roffey  v.  Shallcross,  4  Madd.  227  ;  Dalby  v.  Pullen,  3  Sim.  29. 
(n)    See  2  Bro.  C.  C.  497  ;   1  Ves.  jun.  226. 

(0)  Drewe  v.  Corp,  9  Ves.  jun.  368  ;  Lib.  Reg.  1803,  fol.  290. 
The  registrar's  book  appears  to  have  been  again  referred  to  for  this  case, 
1  Sim.  &  Stu.  201,  n  ;  and  see  13  Ves.  jun.  78. 

(p)  See  Twining  v.  Morrice,  2  Bro.  C.  C.  326  ;  and  Sir  Harry  Hick 
V.  PhilHps,  Free.  Cha.  575. 

(1)  As  to  making  a  title  by  a  feoffment,  and  assigning  the  term  to  a 
trustee,  see  Saunders  v.  Lord  Annesley,  2  Scho.  &  Lef  73.  Doe  v. 
Lynes,  3  Barn  &  Cress.  388  ;  5  Dowl.  &  Ryl.  160,  S.  C. 

(H)  In  the  case  of  Sir  Harry  Hick  v.  Phillips,  on  account  of  the 
unreasonable  price  at  which  the  estate  was  sold,  a  specific  performance 
was  refused,  although  the  vendor  offered  to  procure  an  enfranchisement 
of  the  copyholds.     See  10  Mod.  504.      But  this  case  cannot  be  con- 

(*298) 


OF  A  CONTRACT  o/h  . 

But  if  an  estate  is  sold  as  copyhold,  and  represented 
as  equal  in  value  to  freehold,  it  seems  that  the  vendor  will 
be  compelled  to  perform  the  contract,  although  the  estate 
(*)prove  to  be  actually  freehold(9).  If,  however,  the  con- 
tract for  the  sale  of  a  supposed  copyhold,  stipulate  that 
the  sale  shall  be  void  if  any  part  is  freehold,  the  subject 
must  be  proved  as  described  ;  and  the  circumstance  of 
the  seller  himself,  after  the  first  contract,  selling  the 
estate  to  another  as  copyhold,  is  not  conclusive  evidence 
against  him(r). 

So  it  is  said,  that  a  purchaser  of  an  existing  lease  is  not 
bound  to  take  a  new  lease  instead  of  the  old  one,  because 
the  purchaser  would  become  an  original  lessee,  instead  of 
an  assignee  ;  and  might  therefore  be  subject  to  burdens,  to 
which  he  would  not  have  been  liable  in  the  latter  charac- 
ter(5). 

It  need  hardly  be  observed,  that  if  the  estate  be  sold 
as  in  possession,  the  purchaser  cannot  be  compelled  to  take 
it  if  it  is  subject  to  a  lease  for  life(i),  or  indeed  any  lease. 

If  a  vendee  proceed  in  the  treaty  for  purchase  after  he 
is  acquainted  wdth  the  nature  of  the  tenure,  and  do  not 
object  to  it,  he  will  be  bound  to  complete  his  contract, 
and  cannot  claim  any  compensation  on  account  of  the 
difference  in  value. 

Thus,  where  an  estate  was  sold  as  freehold,  with  a 
leasehold  adjoining(w),  and  it  turned  out  on 'examination 

{q)  Twining  v.  Morrice,  2  Bro.  C.  C.  326 ;  and  see  Browne  r. 
Fenton,  sup.  p.  3. 

(r)   Daniels  v.  Davison,  16  Ves.  jun.  249. 

(s)  Mason  v.  Corder,  2  Marsh.  332. 

(t)   Collier  r.  Jenkins,  1  You.  295. 

(u)  Fordyce  v.  Ford,  4  Bro.  C.  C.  494 ;  and  see  6  Ves.  jun.  670  ; 
10  Ves.  jun.  508  ;   Burnell  v.  Brown,  1  Jac.  &  Walk.  168. 

sidered  as  an  authority,  except  on  the  ground  of  the  price  being  unrea- 
sonable, for  equity  will  in  ordinary  cases  grant  the  vendor  time  to  pro- 
cure the  fee.     See  infra,  ch.  8. 

VOL.  I.  46  (*2W9) 


QQ2  OF  THE  PARTIAL  EXECUTION 

that  sixty-two  acres  were  leasehold,  and  only  eight  free- 
hold ;  yet,  as  the  purchaser  proceeded  in  the  treaty  after 
he  was  in  possession  of  this  fact,  and  did  not  object  to  the 
nature  of  the  property,  he  was  held  to  have  waved  the 
objection. 

(*)And  if  a  purchaser  do  object  to  the  tenure,  yet,  if  he 
proceed  in  the  treaty,  it  seems  that  he  will  be  compelled 
to  take  the  estate,  on  being  allowed  a  compensation(a;). 

In  the  case  of  Wirdman  v.  Kent(y),  upon  a  bill  filed 
by  vendors  for  a  specific  performance,  it  appeared  that 
part  of  the  lands  sold  to  the  purchaser  had  been  previously 
sold  to  one  Pavey ;  a  specific  performance  was  however 
decreed,  and,  as  to  the  lands  terriered  to  the  defendant, 
but  which  had  been  sold  to  Pavey,  that  the  plaintiffs 
should  procure  Pavey  to  release  them  to  the  defendant, 
or  convey  a  like  quantity  of  land  of  equal  value  to  the 
defendant. 

The  particular  circumstances  of  this  case  do  not  appear 
in  the  report ;  but  it  must  be  presumed,  that  the  land  sold 
to  Pavey  was  not  the  object  of  the  purchaser ;  and  that 
other  land  in  the  neighborhood,  of  equal  value,  would 
suit  him  as  well.  Indeed,  in  one  report  of  this  case(2:),  it 
is  said,  that  the  grievances  complained  of  were  disregard- 
ed as  frivolous. 

To  guard  against  the  rules  established  by  the  foregoing- 
decisions,  an  express  declaration  should  be  inserted  in  all 
agreements  for  purchase  of  estates,  that  if  a  title  cannot 
be  made  to  the  whole  estate,  the  purchaser  shall  not  be 
bound  to  perform  the  contract  pro  tanto ;  and  a  similar 
provision  should  be  made  where  an  estate  is  bought  free 
from  tithes,  or  with  any  other  collateral  benefit,  which  the 
purchaser  may  wish  to  secure. 

{x)  See  Calcvaft  v.  Roebuck,  1  Ves.  jun,  221. 
iy)   1  Bro.  C.  C.  140. 
(s)  2  Dick.  594. 
(*300) 


I 


OF  A  CONTRACT. 


363 


There  mav  be  some  rights  in  an  estate  not  disclosed, 
which,  although  in  themselves  of  small  value,  are  inca- 
j3able  of'compensation ;  for  example,  a  right  of  sporting 
reserved  over  the  estate,  and  not  disclosed  to  the  pur- 
chaser ;  for  it  would  not  perhaps  be  possible  to  estimate 
(*)what  difference  in  value  such  a  reservation  made(a) ; 
and  such  a  right  would  break  in  too  much  upon  the  en- 
joyment and  ownership  of  a  purchaser,  to  enable  equity 
with  propriety  to  compel  him  to  take  the  estate  with  a 
compensation. 


II.  Having  considered  in  what  cases  a  vendor  may 
compel  a  performance  jrro  tanto  of  an  agreement,  which 
he  is  unable  wholly  to  perform ;  we  may  now  inquire  in 
what  instances  a  purchaser  may  insist  upon  a  part  per- 
formance of  an  agreement,  which  the  vendor  cannot  exe- 
cute in  toto. 

And  first,  it  seems  that  in  every  case  where  an  agree- 
ment would  be  in  part  executed  in  favor  of  a  vendor, 
there  is  much  greater  reason  to  afford  the  aid  of  the  Court 
at  the  suit  of  the  purchaser,  if  he  be  desirous  of  taking 
the  part  to  which  a  title  can  be  made.  And  a  purchaser 
may,  in  some  cases,  insist  upon  having  the  part  of  an 
estate  to  which  a  title  is  produced,  although  the  vendor 
could  not  compel  him  to  purchase  it :  it  is  true,  gene- 
rally, hut  not  universally^  that  a  purchaser  may  take 
what  he  can  get,  with  compensation  for  what  he  cannot 
have (6). 

Thus  we  have  seen,  that  if  tenants  in  common  contract 
for  the  sale  of  their  estate,  and  one  of  them  die,  the  sur- 
vivors cannot  compel  the  purchaser  to  take  their  shares, 
unless  he  can  obtain  the  shares  of  the  deceased.     But  the 

(a)  Burnell  v.  Brown,  1  Jac.  &  Walk.  168. 

{h)  1  Ves.  &  Beam.  358,  per  Lord  Eldon  ;  Western  v.  Russell,  3 
Vcri.  &  Beam.  187;  AVhcatlcy  i'.  Slade,  4  Sim.  126. 


Qg^  OF  THE  PARTIAL  EXECUTION 

converse  of  this  proposition  does  not  hold ;  for  the  pur- 
chaser may  compel  the  survivors  to  convey  their  shares, 
although  the  contract  cannot  be  executed  against  the 
heir  of  the  deceased(c).  So  even  where  a  vendor  has 
(*)uot  a  title  to  a  part  of  the  estate,  and  consequently  can- 
not enforce  the  acceptance  of  it,  yet  the  purchaser  may 
elect  to  take  it  with  the  title  such  as  it  is(d).  But  a  pur- 
chaser has  no  such  right  where  there  is  a  stipulation  that 
the  contract  shall  be  void  if  the  purchaser's  counsel  is  of 
opinion  that  a  good  title  cannot  be  made  to  the  estate(e). 

If  a  man,  having  partial  interests  in  an  estate,  chooses 
to  enter  into  a  contract,  representing  it,  and  agreeing  to 
sell  it,  as  his  own,  it  is  not  competent  to  him  afterwards 
to  say,  though  he  has  valuable  interests,  he  has  not  the  en- 
tirety ;  and  therefore  the  purchaser  shall  not  have  the  be- 
nefit of  the  contract.  For  the  person  contracting  under 
these  circumstances  is  bound  by  the  assertion  in  his  con- 
tract :  and  if  the  vendee  chooses  to  take  as  much  as  he 
can  have,  he  has  a  right  to  that,  and  an  abatement (y). 

Therefore  in  a  case  where  the  estate  was  sold  for  twen- 
ty-one years,  and  represented  as  held  under  a  church 
lease,  usually  renewed  every  seven  years,  and  it  appeared 
that  the  seller  was  only  entitled  for  life  to  part  ;  the  pur- 
chaser filed  a  bill  for  a  specific  performance  with  a  reduc- 
tion. The  seller  insisted  that  the  purchaser  might  have  an 
option  to  put  an  end  to  the  contract,  but  that  he  (the  seller) 
ought  not  to  be  compelled  to  take  less  than  the  stipulated 
price.  The  decree,  however,  was  for  a  specific  perform- 
ance, with  a  reduction  of  the  purchase-money,  the  interest 
of  the  seller  being  less  valuable  than  it  had  been   repre- 

(c)  Attorney-general  r.  Gower,  1  Yes.  218. 

(d)  Vide  infra. 

(e)  Williams  v.  Edwards,  2  Sim.  78. 

(J)  Per  liord  Eldon,  10  Ves.  jun.  31,  516.  The  same  doctrine 
■<vas  laid  down  by  his  Lordship  in  Wood  v.  Griffith,  12  Feb.  1818  ;  and 
Kee  2  Yes.  jun.  439,  ace.  per  Lord  Rosslyn. 

(*302) 


OF  A  CONTRACT. 


365 

sented  to  the  pu'rchaser(^).  Lord  Eldon  has  since  observed, 
that  the  consequence  of  this  decision  was,  that  if  the  lives 
should  endure  beyond  the  period  of  tvventj-one  years,  the 
(*)purchaser  would  have  the  premises  as  well  as  the  com- 
pensation. In  that  respect  the  case  was  new,  and  deserv- 
ed great  consideration.  The  Lord  Chancellor  added,  that 
in  a  conversation  which  he  had  with  the  Master  of  the 
Rolls,  they  inclined  to  think  it  might  be  right  upon  this  rea- 
soning, that  the  estate  was  purchased  subject  to  a  contin- 
gency affecting  its  immediate  value  ;  he  could  not  carry  it 
to  market,  he  could  do  nothing  with  it  that  would  make  it 
absolute  property  in  him  as  if  he  had  an  absolute  term  of 
twenty-one  years  ;  but  as  the  compensation  might  be  ag- 
gravated enormously,  beyond  the  actual  value,  so  it  might 
be  much  too  small,  and  the  Court  would  throw  the  chances 
together.  The  only  other  course  was  to  adopt  the  princi- 
ple of  indemnity,  either  by  taking  security,  or  laying  hold 
of  part  of  the  purchase-money,  with  a  view  to  compensa- 
tion if  the  case  should  arise,  and  that  was  open  to  this  diffi- 
culty, that  the  property  held  subject  to  the  question  of 
indemnity  remains  unsaleable,  unmarketable,  and  of  infi- 
nitely less  value  than  it  would  otherwise  be. 

In  a  later  case(^),  upon  a  sale  of  leasehold  for  lives, 
the  representation  of  the  seller  was  held  to  amount  to 
this :  that  the  lessee  thereof  upon  lives,  under  a  church 
lease,  granted  the  lease  in  question,  with  covenants, 
binding  his  real  and  personal  representatives  to  procure 
renewals  to  make  the  complete  term  sold.  It  appeared, 
however,  that  the  covenant  to  renew  was  limited,  and  not 
binding  to  the  extent  mentioned,  the  estate  being  in 
settlement,  and  the  covenants  not  general.  The  pur- 
chaser  filed  a  bill  for  a  specific  performance,  with  an 
allowance.     In  effect  the  difference  was  between  a  cove- 


(g-)   Dale  r.  Lister,  16  Yes.  jun.  7,  cited, 
(/r)    ]Milligan  v.  Cooke,  16  Vee.  jun.  1. 

(*303) 


3gg  OF  THE  PARTIAL  EXECUTION 

nant  by  the  lessor  binding  all  his  assets  real  and  personal, 
and  a  covenant  which  only  bound  that  property  which 
(*)the  lessor  might  permit  to  go  from  him  to  his  son,  who 
would  be  entitled  to  the  property  under  the  settlement. 
Lord  Eldon  felt  great  doubt  whether  that  could  be  made 
the  subject  of  a  valuation.  The  purchaser,  however, 
only  desired  an  indemnity  upon  a  real  estate ;  or  by  part 
of  the  purchase-money  to  be  kept  in  Court,  the  sellers 
receiving  the  dividends.  The  Lord  Chancellor  decreed 
a  specific  performance,  and  directed  an  inquiry  what  was 
the  difference  between  the  value  of  the  interest  actually 
sold,  and  that  represented,  and  such  difference  to  be  de- 
ducted from  the  purchase-money ;  and  if  the  Master 
should  find  that  he  was  unable  to  ascertain  such  difference 
in  value,  or  if  the  purchaser  should  choose  to  take  the 
title  with  a  sufficient  indemnity,  he  might,  and  the  decree 
was  affirmed  upon  a  rehearing. 

But  the  general  rule,  independently  of  special  circum- 
stances, is,  that  the  Court  can  neither  compel  a  purchaser 
to  take  an  indemnity  nor  a  vendor  to  give  it(i)(190). 

Although  a  purchaser  may  in  most  cases  insist  upon 
taking  the  interest  which  the  vendor  can  give  him,  yet  it 
seems  that  equity  wall  not  decree  an  under-lease  on  an 
agreement  to  assign,  though  it  appear  that  the  assignment 
cannot  be  made  without  a  forfeiture  ;  for  the  defendant, 
in  agreeing  to  assign,  might  intend  to  discharge  himself 
from  covenants  to  which  he  would  continue  liable  by  the 
under-lease (/c).      This  is,   however,   a  defence  which  a 

(?■)  1  Yes.  &  Beam.  265  ;  vide  ^wst,  ch.  7 ;  Paton  v.  Brebner,  1 
Bligh,  66. 

(fc)  Anon.  E.  T.  1790  ;  Fonbl.  n.  (r),  to  1  Trea.  Eq.  211,  2  edit. 
See  Mason  v.  Corder,  2  Marsh.  332. 


(190)  See  Hapbimi  v.  Atdd,  5  Cranch,  262.  See  also  the  opinion 
of  SPENCER,  J.  in  JValcrs  v.  Travis,  9  Johns.  Rep.  464,  465.  See 
also,  Chinn  v.  Hcale,  1  Munf.  63.  M'ConneWs  Heirs  v.  Ditnla})'s 
Dev.  Hardin,  41. 

(*304) 


OF  A  CONTRACT.  oq^ 

vendor  can  seldom  set  up  against  a  purchaser's  claim, 
where  the  purchaser  chooses*  to  accept  an  under-lease  ; 
for  an  assignee  of  a  lease  almost  invariably  covenants  to 
indemnify  his  vendor  from  the  rent  and  covenants  in  the 
(*)lease,  and  from  these  covenants  he  cannot  of  course 
discharge  himself  by  an  assignment,  any  more  than  by  an 
under-lease. 

So  it  has  been  determined  by  Lord  Redesdale,  that 
where,  at  the  time  of  the  contract,  the  purchaser  is  fully 
aware  that  the  vendor  cannot  execute  the  agreement,  and, 
consequently,  cannot  enforce  the  performance  of  it ;  there 
the  agreement  must  be  presumed  to  have  been  executed 
under  a  mistake,  and  the  purchaser  cannot  insist  upon  a 
performance  as  to  the  interest  to  which  the  vendor  may 
be  actually  entitled (/). 

And  in  a  case  where  a  tenant  for  life,  with  a  power  of 
leasjng  for  twenty-one  years  at  a  rack-rent,  agreed  to 
execute  a  lease  for  twenty-one  years,  and  a  further  lease 
for  twenty-one  years  at  any  time  during  his  life,  conse- 
quently to  execute  a  lease  for  twenty-one  years,  whatever 
might  be  the  increased  value  of  the  property  at  the  time 
the  lease  should  be  granted ;  Lord  Redesdale  considered 
it  a  contract  to  act  in  fraud  of  the  power,  and  that  the 
lessee  was  not  entitled  to  a  specific  performance.  To 
obviate  this  objection,  the  lessee  offered  to  take  a  renewed 
lease  for  twenty-one  years,  if  the  lessor  should  so  long 
live ;  but  Lord  Redesdale  thought  that  this  was  one  of 
those  cases  where  the  plaintiff  had  no  right  thus  to 
qualify  the  contract  he  insisted  upon :  there  was  nothing 
in  the  case  to  show  that  satisfaction  in  the  form  of 
damages  was  not  an  adequate  remedy  for  him.  If  he 
had  been  put  into  a  situation  from  which  he  could  not 
extricate  himself,  the  defendant  might  be  called  on  to 
make   the  best  title  in  his  power,  but  nothing  could  be 

(/)  Lawrenson  v.  Butler,  1  Scho.  &  Lef.  13  ;  see  Moitlock  v.  Buller, 
19  Ves.  jun.  292. 

(*305) 


358  OF  THE  PARTIAL  EXECUTION  OF  A  CONTRACT 

more  mischievous  than  to  permit  a  person  who  knows 
(*)that  another  has  only  a  limited  power,  to  enter  into  a 
contract  with  that  other  person,  which,  if  executed,  would 
be  a  fraud  on  the  power,  and  when  that  was  objected  to, 
to  say,  "  I  will  take  the  best  you  can  give  me."  A 
court  of  equity  ought  to  say,  to  persons  coming  before 
it  in  such  a  way,  "  make  the  best  of  your  case  with  a 
jury"(m)(191). 

It  should  be  observed  that  there  was  another  point  in 
the  above  cause,  and  the  decree  w"as  pronounced  after 
considerable  doubts.  It  seems  difficult  to  reconcile  the 
opinion  expressed  by  Lord  Redesdale  with  the  current  of 
authorities.  It  was  not  a  necessary  consequence  of  the 
contract  that  the  lease  agreed  to  be  granted  would  be  a 
fraud  on  the  power,  and  the  purchaser  w-as  willing  to 
take  the  interest  which  the  seller  was  enabled  to  grant 
without  risk  to  himself  or  injury  to  the  remainder-men. 

If  in  a  case  of  this  nature,  the  purchaser,  on  the  faith 
of  the  agreement,  put  himself  in  a  situation  from  which 
he  cannot  extricate  himself,  and  is  therefore  willing  to 
forego  a  part  of  his  agreement,  that  is  a  circumstance  to 
induce  a  court  of  equity  to  give  relief.  Thus,  in  a  case 
before  Lord  Thurlow,  the  incumbent  of  a  living  had, 
with  full  knowledge  of  the  title,  contracted  with  the 
tenant  in  tail,  in  remainder  after  a  life  estate,  for  the  pur- 
chase of  the .  advowson,  and  on  the  faith  of  that  agree- 
ment had  built  a  much  better  house  than  he  would 
otherwise  have  done ;  the  tenant  for  life  would  not  join 
in  suffering  a  recovery,  and  consequently  a  good  title  could 
not  be  made.  Lord  Thurlow  held,  that  as  the  purchaser 
had,  upon  the  faith  of  the  contract,  built  a  good  house 
on  the  glebe,  he  ought  to  have  the  utmost  the  vendor 
could  give  him;  and    therefore  directed  the   vendor  to 

(m)    Harnet  v.  Yielding,  2  Scho.  &  Lef.  549  ;  vide  supra,  p.  209. 

(191)   See  Graham  v.  Hendren,  6  Munf.  183. 
(*306) 


OF  DEFECTS  IN  THE  QUALITY  OF  THE  ESTATE.  OQQ 

{*)convey  a  base  fee,  by  levying  a  fine  with  a  covenant  to 
suffer  a  recovery  whenever  he  should  be  enabled  to  do  so 
by  the  death  of  the  tenant  for  life(n). 

If  the  vendor  has  granted  a  lease  of  the  estate  which 
is  void  by  force  of  a  statute,  the  Court  will  not,  on  the 
request  of  the  purchaser,  consider  the  lease  as  valid,  and 
allow  him  a  compensation  in  respect  of  it(o). 

SECTION  II. 

Of  Defects  in  the  Quality  of  the  Estate. 


In  most  cases  on  this  head,  the  rule  "  caveat  emptor'''' 
applies,  and  therefore,  although  there  be  defects  in  the 
estate,  yet,  if  they  are  patent,  the  purchaser  can  have  no 

relief(j9X192). 

(ji)   Lord  Bollingbroke's  case,  cited  1  Scho.  &  Lef.  19,  n.   (a). 
(o)  Morris  v.  Preston,  7  Yes.  jun.  647. 

(p)  See  the  introductory  Chapter ;  and  see  Lowndes  v.  Lane,  2  Cox, 
363. 


(192)  The  maxim  caveat  emptor  will  not  be  applied  against  a  purcha- 
ser, where  there  has  been  fraud  or  misrepresentation  on  the  part  of  the 
vendor.  Pringle  v.  Samuel.,  1  Litt.  46.  See  Sherwood  v.  Salmon,  5 
Day,  439.  Consistent  with  this  principle,  are  the  decisions  in  Bostwick 
V.  Lewis,  1  Day,  33,  250.,  and  in  JVorton  v.  Hathatvarj,  1  Day,  255. 
note  d.  These  were  actions  at  law.  But  in  Sliericood  v.  Salmon,  2 
Day,  128,  which  was  also  an  action  at  law,  (See  S.  C.  ut  supra)  the 
principle  laid  down  in  the  text,  was  fully  recognized.  The  rule  caveat 
emptor  does  not  apply  to  sales  by  a  master,  because  he  is  considered  as 
the  agent  of  the  parties.      Tnnno  v.  Fliidd,  1  M'Cord,  122. 

Imposition  and  fraud  upon  the  purchaser  by  any  wilful  misrepresen- 
tation or  concealment,  takes  the  case  cut  of  the  general  rule,  and  enti- 
tles him  to  be  redressed  in  equity,  in  addition  to  and   beyond  the  cov- 

voi..    I.  47  (*307) 


g^Q  OF  DEFECTS  IN  THE  QUALITY 

Thus,  where  a  meadow  was  sold  without  any  notice  of 
a  footway  round  it,  and  also  one  across  it,  which  of  course 
lessened  its  value,  Lord  Rosslyn  decreed  a  specific  per- 
formance with  costs,  as  he  could  wo^,  he  said,  help  the 

enants  in  the  deed.  The  cases  of  Bumpus  v.  Platner,  1  J.  Ch.  R. 
213  ;  Abbot  v.  Allen,  2  ib.  519  ;  Johnson  v.  Geer,  ib.  546  ;  Chester- 
man  V.  Gardner,  5  ib.  29  ;  and  Governeiir  v.  Ehiiendorf,  ib.  79;  are 
authorities  for  this  :  and  also  for  the  point,  that  a  grantee,  to  whom  pos- 
session has  been  delivered  under  covenants  of  title  and  warranty,  can 
have  no  relief  in  equity  against  his  grantor  for  a  return  of  purchase-mo- 
ney or  security  on  account  of  a  defect  or  failure  of  title  :  because  he 
has  secured  himself  by  covenant ;  and  he  has  an  adequate  remedy  at 
law.  If  he  has  taken  no  covenants,  and  the  title  fails,  he  will  be  with- 
out remedy  in  equity,  as  well  as  at  law,  if  the  contract  were  fair  and 
there  be  no  fraud  in  the  case. 

The  late  case  of  Deniston  et  al,  assignees  v.  Morris  et  al,  assignees, 
2  Edw.  Ch.  R.  27.  was  thus  :  the  defendants  sold  an  estate  to  one  Sand- 
ford  with  promises  of  title  and  a  warranty.  The  latter  entered  into  pos- 
session and  made  improvements  in  buildings,  &c.  :  and  then  defen- 
dants would  only  give  him  a  deed  with  covenants  as  to  their  own  acts. 
They  represented  the  title  as  good  ;  and  engaged  that  they  would  not 
transfer  the  mortgage  he  was  to  give  for  the  purchase-money  ;  so'  that 
if  the  title  failed  the  same  should  be  restored.  Sandford  sold  his  inte- 
rest to  Dickey  ;  and  one  Jackson  sued  Dickey  and  recovered  having  a 
paramount  title.  Dickey  also  was  obliged  to  pay  the  mortgage  ;  the 
defendants  having  contrary  to  their  promise  transferred  it.  Dickey 
failed  ;  and  the  complainants  as  his  assignees  sued  this  bill  alleging  that 
the  defendants  had  funds  sufficient  in  their  hands.  The  Vice  Chancellor 
observed  that,  "  the  difficulty  in  the  case  is  this  ;  that  Sandford  is  not  the 
party  complaining  of  the  fraud  ;  nor,  indeed  has  he  been  injured  by  it. 
He  sold  the  property  without  fraud  and  without  covenants  for  an  ade- 
quate consideration.  According  to  (he  staten.ent  of  the  transaction  the 
vendors  became  trustees  of  that  part  of  the  purchase-money,  which  was 
secured  by  mortgage.  An  implied  trust,  at  least,  v/as  created  of  the 
purchase-money  ;  and  such  an  one  as  this  court  is  bound  to  protect  and 
preserve. — If  then  there  be  a  trust  fund  and  trustees  of  it ;  for  whose 
benefit  does  it  enure  ?  The  title  was  to  be  made  satisfactory  to  Sand- 
ford and  his  asstg-»*.  xV  loss  resulted  in  the  failure  of  the  title  ;  and  this 
loss  has  been  borne  by  Dickey ;  and  he  or  those  standing  in  his  place, 
are  the  persons  entitled  to  the  benefit  of  it.  Consequently,  the  demur- 
rers which  had  been  filed  were  overruled. 


OF  THE  ESTATE. 


371 


purchaser  who  did  not  choose  to  inquire{q).  It  was  not  a 
latent  defect.  Lord  Manners  has  said,  that  he  believed 
the  bar  was  not  very  well  satisfied  with  the  decision, 
although,  as  he  observed,  the  purchaser  was  undoubtedly 
extremely  negligent  not  to  look  at  the  estate  before  he 
purchased  it(?'). 

So  a  description,  that  the  land  was  uncommonly  rich 
water  meadow,  was  held  to  be  immaterial,  although  the 
property  was  imperfectly  watered.  The  Court  thought 
(*)that  it  would  be  straining  the  meaning  of  the  words 
/'uncommonly  rich  water  meadow  land,"  if  it  were  not 
confined  to  the  quality  of  the  land  ;  and  in  that  sense  it 
professed  to  be  nothing  more  than  the  loose  opinion  of 
the  auctioneer  or  vendor  as  to  the  obvious  quality  of  the 
land,  upon  which  the  vendee  ought  not  to  have  placed, 
and  could  not  be  considered  to  have  placed,  any  re- 
liance (5). 

And  here  a  case(^)  may  be  introduced,  where  the  sub- 
ject of  the  contract  was  a  house  on  the  north  side  of  the 
river  Thames,  supposed  to  be  in  the  county  of  Essex,  but 
which  turned  out  to  be  in  Kent ;  a  small  part  of  which 
county  happens  to  be  on  the  other  side  of  the  river.  The 
purchaser  was  told  he  would  be  made  a  churchwarden  of 
Greenwich,  when  his  object  was  to  be  a  freeholder  of 
Essex  ;  yet  he  was  compelled  to  take  the  house. 

This  decision,  however,  seems  to  be  opposed  by  a  case 
before  Lord  Talbot.  An  agreement  was  entered  into  for 
the  purchase  of  a  house  for  a  coffee-house.  It  was  found 
that  a  chimney  could  not  be  made  convenient  for  a  coffee- 
house; but  nevertheless,  the  vendor  filed  a  bill  against 
the  purchaser,  to  compel  him  to  perform  the  agreement. 
Lord  Talbot  dismissed  the  bill,  merely  because  the  tenant 

(q)  Oldfield  V.  Round,  5  Yes.  jun.  608. 

()•)   1  Ball  &  Beatty,  250  ;  and  see  Lcggc  v.  Crokcr,  ib.  506. 

(s)    Scott  r.  Hanson,  1  Sim.  13. 

(0  Shiilcv  j\  Davic.^,  in  the  Exrhcqucr,  (J  Vcs.  jun.  »i78.  cited. 

(*30S) 


3-72  ^^  DEFECTS  IN  THE  QUALITY 

would    be  obliged    to  take  it  for  a  purpose  he  did  not 
WB.nt(ii). 

But  it  may  be  remarked,  that  it  is  no  bar  to  a  specific 
performance,  that  the  conveyance  will  not  have  the  ope- 
ration which  the  vendor  thought  it  would.  Thus  where 
a  tenant  for  life  of  a  copyhold  purchased  the  reversion  in 
the  hope  of  extinguishing  contingent  remainders,  and 
afterwards  finding  that  the  conveyance  would  not  affect 
the  remainders,  brought  a  bill  to  be  relieved  against  the 
(*)security  which  he  had  given  for  the  purchase-money  ; 
the  Court  gave  him  his  option  either  to  pay  the  principal, 
interest  and  costs,  or  to  have  his  bill  dismissed  with 
costs(a;). 

So  in  a  case  where,  under  the  legal  construction  of  the 
terms  of  an  agreement  for  a  lease,  the  option  to  determine 
the  lease  was  in  the  lessee  only,  and  it  was  argued  against 
a  specific  performance,  that  this  was  contrary  to  the  inten- 
tion, the  Master  of  the  Rolls  said  that  a  specific  perform- 
ance of  a  written  agreement  cannot  be  denied  because 
the  meaning  of  the  parties  does  not  appear(2/). 

But  where  a  vendor  gives  a  false  description  of  the 
estate,  the  purchaser  may  at  law  rescind  the  contract(193). 
As  where  before  the  Reform  Act  an  estate  was  stated  to 
be  but  one  mile  from  a  borough  town,  and  it  turned  out  to 
be  between  three  and  four,  the  contract  was  held  to  be 
voidable  by  the  purchaser(2).     And   the  same  rule  must 


(m)   1  Russ.  &  Myl.  128;   1  Ves.  307;  and  see  13  Ves.  jun.  78. 

(x)   Mildmay  v.  Hungerford,  2  Vein.  243. 

(j/)   Price  V.  Dyer,  MS.,  Rolls  ;  S.  C.  17  Ves.  jun.  366. 

(c)  Duke   of  Norfolk  v.  Worthy,   1  Camp.  Ca.  337  ;  vide  supra,  p. 

42 ;  and  see  Fenton  v.  Browne,  14  Ves.  jun.  144  ; v.  Christie,  1 

Salk.  28,  by  Evans  ;  Trower  v.  Newcombe,  3  Mer.  704. 

(193)   See  Sherivood  v.  Salmon,   6  Day,  439.   S.  C.  at  law.   2  Day, 
128.     See  also,  Bostwick  v.  Leivis,  1  Day,  33,  250.     JVorton  v.  Hath- 
away, 1  Day,  255.  note  rf. 
(*309) 


OF  THE  ESTATE.  gyg 

prevail  in  equity  where  the  misdescription,  as  in  this  case, 
is  not  from  the  nature  of  it  a  subject  of  compensation. 

So  in  a  case  where  the  estate  was  described  to  have 
lately  undergone  a  thorough  repair,  whereas  it  was  in  a 
complete  state  of  ruin,  and  ordered  to  be  pulled  down  by 
the  district  surveyor,  the  purchaser  was  allowed  to  rescind 
the  contract(a).  And  where  the  state  of  the  repairs 
was  falsely  represented  by  the  seller,  knowing  that  the 
house  had  the  dry-rot,  without  communicating  that  fact 
to  the  purchaser,  upon  a  bill  filed  by  the  seller,  a  specific 
performance  was  decreed,  with  a  compensation  to  the 
purchaser(6). 

(*)So  where  the  purchaser  of  a  leasehold  house  was 
aware  of  the  ruinous  state  of  the  premises,  but  no  mention 
was  made  at  the  sale  by  auction  of  a  notice  to  repair  given 
to  the  vendor  by  the  lessor,  on  the  day  before  the  sale, 
under  which  the  lessor  re-entered  and  evicted  the  pur- 
chaser, he  (the  purchaser)  was  permitted  to  recover  the 
deposit  from  the  auctioneer,  on  the  ground  that  in  such 
transactions  good  faith  was  most  essential,  and  the  vendor 
or  his  agent  was  bound  to  communicate  to  the  vendee,  the 
fact  of  such  notice(c). 

Again,  where  a  person  for  whose  life  the  property  was 
held,  was  described  to  be  a  very  healthy  gentleman,  and 
in  another  passage  a  healthy  gentleman,  and  the  sellers 
had  shortly  before  the  sale  insured  the  life  at  a  sum  ex- 
ceeding the  highest  rate  charged  for  a  healthy  life  of  the 
same  age,  the  bill  of  the  sellers  for  a  specific  performance 
was  dismissed  with  costs((/). 

But  if  the  purchaser  knew  that  the  description  was 

(a)  Loyes  v.  Rutherford,  K.  B.  16  May  1809. 

(6)  Grant  v.  Munt,  Coop.  173. 

(o)  Stevens  v.  Adamson,  2  Stark.  422. 

(d)  Brealey  v.  Collins,  1  You.  317. 

(*310) 


374  ^^  DEFECTS  IN  THE  QUALITY 

false,  he  cannot,  it  seems,  take  advantage  of  it  either  at 
law  or  in  equit}'(194). 

Thus,  in  a  case  before  Sir  William  Grant(e)5  where 
an  estate  was  described  as  being  within  a  ring  fence,  it 
appeared,  that  the  estate  was  intersected  by  other  lands, 
and  did  not  answer  the  description,  but  that  the  pur- 
chaser knew  the  situation  of  the  estate  ;  his  Honor  (after 
expressing  a  doubt  whether  such  an  objection  was  a  sub- 
ject of  compensation,  as  it  was  not  certain  that  a  precise 
pecuniary  value  could  be  set  upon  the  difference  between 
a  farm  compact  in  a  ring  fence,  and  one  scattered  and 
dispersed  with  other  land),  said,  that  the  purchaser  was 
clearly  excluded  from  insisting  upon  that  as  an  objection 
to  complete  the  contract.  He  saw  the  farm  before  he 
(*)purchased  ;  he  had  lived  in  the  neighborhood  all  his 
life.  This  variance  was  the  object  of  sense ;  he  must 
have  known  whether  the  farm  did  lie  in  a  ring  fence  or 
not ;  and  upon  the  same  ground,  that  the  purchaser  could 
not  get  rid  of  the  contract  on  account  of  the  difference  in 
the  description  of  the  farm,  his  Honor  determined  he 
could  not  be  entitled  to  compensation.  If  a  compensa- 
tion was  given  to  him,  he  would  get  a  double  allowance ; 
for  if  he  had  knowledge  that  what  he  proposed  to  pur- 
chase did  not  answer  the  description,  it  must  be  taken 
that  he  bid  so  much  the  less. 

This  case,  we  observe,  went  a  step  farther  than  either 
the  case  before  the  Court  of  Exchequer,  or  that  before 
Lord  Rosslyn,  in  neither  of  which  was  there  any  warranty 

(e)  Dyer  v.  Hargrave,  10  Ves.  jun.  506. 

(144)  A  purchaser  of  land,  being  informed  of  defects  in  the  vendor's 
title,  and  agreeing,  nevertheless,  to  pay  interest  on  the  purchase  money, 
from  a  certain  day,  shall  not  be  relieved  from  the  payment  of  it,  on  the 
ground  that  he  could  not  get  possession  of  part  of  the  land,  which  he 
knew,  at  the  time  of  entering  into  (he  agreement,  wa.s  held  by  another 
person.     JMayo  v.  Perccll,  3  Munf.  2-13. 

(*311) 


OF  THE  ESTATE. 


375 


or  false  description.  But  in  this  case  it  was  expressly 
stated,  that  the  whole  estate  was  within  a  ring  fence ; 
but  the  Master  of  the  Rolls  thought  that  circumstance 
immaterial,  as  the  purchaser  knew  the  description  was 
false  ;  and  his  Honor  appears  to  have  grounded  his  deci- 
sion on  the  doctrine,  that  even  at  law-  a  w  arranty  is  not 
binding  where  the  defect  is  obvious,  and  put  the  cases  of 
a  horse  with  a  visible  defect,  and  a  house  without  a  roof 
or  windows  warranted  as  in  perfect  repair. 

But  where  a  particular  description  is  given  of  the 
estate,  which  turns  out  to  be  false,  and  the  purchaser 
cannot  be  proved  to  have  had  a  distinct  knowledge  of 
the  actual  state  of  the  subject  of  the  contract,  he  will  be 
entitled  to  a  compensation,  although  he  may  be  com- 
pelled to  perform  the  contract. 

Thus,  in  the  case  before  the  Master  of  the  Rolls,  the 
particular  described  the  house  as  being  in  good  repair, 
and  the  farm  as  consisting  of  arable  and  marsh  land,  in 
a  high  state  of  cultivation.  It  appeared,  however,  that 
the  house  was  not  in  good  repair,  and  that  the  land  was 
not  in  a  high  state  of  cultivation.  The  judgment  contains 
(*)the  facts  of  the  case,  and  is  highly  satisfactory.  His 
Honor  said,  "  These  objections  are  such  as  a  man  may 
have  an  indistinct  knowledge  of,  and  he  may  have  some 
apprehension  that,  in  those  respects,  the  premises  do  not 
completely  correspond  with  the  description,  and  yet  the 
description  may  not  be  so  completely  destroyed  as  to  pro- 
duce any  great  difference  in  his  offer.  As  to  the  marsh 
land,  it  is  very  uncertain,  whether,  by  any  view,  it  was 
possible  for  him  to  judge  of  that.  It  is  stated  by  many 
witnesses,  that  the  season  of  the  year  was  just  at  the 
breaking  of  a  frost,  and  represented  that  no  man  could,  at 
that  time,  say  whether  the  land  was  well  or  ill  cultivated. 
So  he  may  have  seen  some  trifling  defects  in  the  house, 
and  might  not  intend  to  make  the  objection,  if  they  turned 
out  to  be  nothing  more  than  they  appeared   upon  the  sur- 

(*312) 


gyg  OF  DEFECTS  IN  THE  QUALITY 

face.  He  might  consider  them  too  trivial,  and  not  mean 
to  claim  compensation  for  an  objection  so  insignificant. 
But  afterwards,  when  he  came  to  examine,  according  to 
this  evidence,  he  discovered  that  the  house  was  materially 
defective,  and  very  much  out  of  repair.  Admitting  that 
he  might,  by  minute  examination,  make  that  discovery, 
he  was  not  driven  to  that  examination ;  the  other  party 
having  taken  upon  him  to  make  a  representation  :  other- 
wise he  would  be  exonerated  from  the  consequence  of 
that  in  every  case  where,  by  minute  examination,  the  dis- 
covery could  be  made.  The  purchaser  is  induced  to  make 
a  less  accurate  examination  by  the  representation,  which 
he  had  a  right  to  believe.  This  purchaser,  therefore,  is 
entitled  to  compensation  for  the  defects  of  the  house,  and 
the  cultivation  of  the  marsh  land." 

But  notwithstanding  that  the  foregoing  case  has  estab- 
lished, that  the  repairs  necessary  to  a  house  are  a  subject 
of  compensation,  although  the  house  is  described  to  be  in 
good  repair,  yet  his  Honor  seemed  to  admit,  that  if  the 
purchaser  wanted  possession  of  the  house  to  live  in  at 
(*)a  given  period,  by  which  time  the  repairs  could  not  be 
completed,  he  ought  not  to  be  bound  to  complete  the 
contract(/J. 

Where  the  defect  is  a  latent  one,  and  the  purchaser 
cannot  by  the  greatest  attention  discover  it,  if  the  vendor 
be  aware  of  it,  and  do  not  acquaint  the  purchaser  with 
the  fact,  he  may  set  aside  the  contract  at  law,  although 
he  bought  the  estate  with  all  faults(g)  ;  and  equity  will 
not  enforce  a  specific  performance(^). 

This  was  decided  at  law,  by  Lord  Kenyon  at  nisi  prius, 
upon  the  sale  of  a  ship.  It  was  insisted,  for  the  seller, 
that   the  rule  caveat  emptor  applied ;  but  Lord  Kenyon 

(/)   Vide  infra,  ch.  8. 

{g)   Mellish  V.  Motteux,  Peake's  Ca.  116. 

(h)   Oldfield  V.  Round,  5  Ves.  jun.  508. 

(*313) 


OF  THE  ESTATE. 


377 


said,  that  there  are  certain  moral  duties,  which  philoso- 
phers have  called  duties  of  imperfect  obligation,  such  as 
benevolence  to  the  poor,  and  many  others,  which  ccmrts 
of  law  do  not  enforce.  But  in  contracts  of  all  kinds,  it 
is  of  the  highest  importance  that  courts  of  law  should 
compel  the  observance  of  honesty  and  good  faith.  This 
was  a  latent  defect,  which  the  plaintiffs  could  not,  by  any 
attention  whatever,  possibly  discover ;  and  which  the  de- 
fendants knowing  of,  ought  to  have  disclosed  to  the  plain- 
tiffs. The  terms  to  which  the  plaintiffs  acceded,  of  taking 
the  ship  with  all  faults,  and  without  warranty,  must  be 
understood  to  relate  only  to  those  faults  which  the  plain- 
tiffs could  have  discovered,  or  which  the  defendants  were 
unacquainted  with. 

In  a  late  case(z),  the  same  point  arose  before  Lord 
Ellenborough  at  nisi  prius ;  but  ultimately  it  was  not  ne- 
cessary to  decide  it.  Lord  Kenyon's  decision  was  cited. 
Lord  Ellenborough  said,  that  he  could  not  subscribe  to 
(*)the  doctrine  of  that  case,  although  he  felt  the  greatest 
respect  for  the  authority  of  the  Judge  by  whom  it  was 
decided.  Where  an  article  is  sold  ivith  all  faults,  he 
(Lord  Ellenborough)  thought  it  was  quite  immaterial  how 
many  belonged  to  it  within  the  knowledge  of  the  seller, 
unless  he  used  some  artifice  to  disguise  them,  and  to  prevent 
their  being  discovered  by  the  purchaser.  The  very  object 
of  introducing  such  a  stipulation  is,  to  put  the  purchaser 
on  his  guard,  and  to  throw  upon  him  the  burthen  of  ex- 
amining all  faults,  both  secret  and  apparent.  A  man  may 
be  possessed  of  a  horse  he  knows  to  have  many  faults, 
and  wish  to  get  rid  of  him,  for  whatever  sum  he  would 
fetch.  He  desires  his  servant  to  dispose  of  him ;  and, 
instead  of  giving  a  warranty  of  soundness,  to  sell  him 

(i)  Baglehole  v.  Walters,  3  Camp.  Ca.  154.  See  1  Ball  &  Bealty, 
615.  Early  v.  Garrett,  9  Barn.  &  Cress.  928 ;  4  Man.  &  Ryl.  687, 
S.  C. 

VOL.  I.  48  (^au) 


3'73  OF  DEFECTS  IN  THE  QUALITY 

with  all  faults.     Having  thus  laboriously  freed  himself 

from  responsibility,  is  he  to  be  liable,  if  it  be  afterwards 

discovered  that  the  horse  was  unsound  ?     Why   did  not 

the  purchaser  examine  him  in  the  market  when  exposed 

to  sale  ?     By  acceding  to  buy  the  horse  with  all  faults,  he 

takes  upon  himself  the  risk  of  latent  or  secret  faults,  and 

calculates  accordingly  the  price  which  he  gives.     It  would 

be  most  inconvenient  and  unjust  if  men  could  not,   by 

using  the  strongest  terms  w^hich  language  affords,  obviate 

disputes  concerning  the  quality  of  the  goods  which  they 

sell.     In  a  contract  such    as  this,  his   Lordship  thought 

there  was  no  fraud,  unless  the  seller,  by  positive  means, 

renders  it  impossible  for  the  purchaser  to  detect  latent 

faults  ;  and  he  made  no  doubt,  that  this  would  be  held  as 

law  when  the  question  should  come  to  be  deliberately 

discussed  in  any  court  of  justice. 

In  a  still  later  case,  upon  the  sale  of  a  ship,  the  parti- 
'cular  stated,  amongst  other  things,  that  the  hull  was  nearly 
as  good  as  when  launched.  And  after  stating  when  she 
was  to  be  seen,  added,  "  with  all  faults  as  they  now  lie." 
Then  followed  an  inventory  of  the  stores,  to  which  the 
(*)following  declaration  was  added,  "  the  vessel  and  her 
stores  to  be  taken  with  all  faults  as  they  now  lie,  without 
any  allowance  for  weight,  length,  quality,  or  any  defect 
whatsoever. '^'^  The  ship  was  quite  unseaworthy.  She  be- 
longed to  underwriters  to  whom  she  had  been  abandon- 
ed. The  agents  for  the  sale  must  have  known  her  defects, 
and  she  was  kept  constantly  afloat,  so  that  her  defects  could 
not  be  discovered.  The  person  who  framed  the  particu- 
lar had  not  examined  the  vessel  (A;)  (195).  Mansfield,  C.  J. 
said  that  these  words  were  very  large,  to  exclude  the 
buyer  from  calling  upon  the  seller  for  any  defect  in  the 
thing  sold,  but  if  the  seller  was  guilty  of  any  positive 

(k)   Schneider  v.  Heath,  3  Camp.  Ca.  506. 


(195)   See  D^jev  v.  Lewis,  7  Mass.  Rep.  284. 
(*315) 


OF  THE  ESTATE.  ^-70 

iraud  in  the  sale,  these  words  will  not  protect  him.     There 
might  be  such  fraud  either  in  a  false   representation,  or  in 
using  means  to  conceal  such  defect.      He  thought  the 
particular  was  evidence  here  by  way  of  representation, 
that  states  the  hull  to  be  nearly  as  good  as  when  launched, 
and  that  the  vessel  required  a  most  trifling  outfit.     Now, 
was  this  true  or   false  ?     If  false,  it  was  a  fraud,  which 
vitiates  the  contract.     What  was  the  fact  ?  The  hull  was 
worm-eaten,  the  keel  \yas  broken,  and  the  ship  could  not 
be  rendered  seaworthy  without  a  most  expensive  outfit. 
The   agent  says,  that   he  framed  this  particular  without 
knowing  any  thing  of  the  matter.     But  it  signifies  nothing 
whether  a  man  represents  a  thing  to  be  different  from 
what  he  knows  it  to  be,  or  whether  he   makes  a  repre- 
sentation which  he  does  not  know  at  the  time  to  be  true 
or  false,  if,  in  point  of  fact,  it  turns  out  to  be  false.     But, 
besides    this,    it   appears   here    that    means   were    taken 
fraudulently  to  conceal   the  defects  in  the  ship's  bottom. 
These  must  have  been  known  to  the  captain,  who  was  to 
be  considered  the  agent  of  the  owners,  and  he  evidently, 
(*)to  prevent  their  being  discovered  by  persons  disposed  to 
bid  for  her,  removed   her  from   the  ways  where  she   lay 
dry,  and  kept  her  afloat  in  the  dock  till  the  sale  was  over. 
Therefore,  consistently  with  the  decided  cases  upon  this 
subject,  the  learned  Judge  was  of  opinion,  that  the  pur- 
chaser was  entitled  to  recover  back  his  deposit. 

In  a  case  which  occurred  a  few  nnionths  before,  upon 
the  sale  of  a  ship,  where  the  Court  held  that,  in  point  of 
fact,  there  was  no  fraud,  Mr.  Justice  Heath  said,  that  the 
meaning  of  selling  "  with  all  faults"  is,  that  the  purchaser 
shall  make  use  of  his  eyes  and  understanding  to  discover 
what  faults  there  are.  He  admitted  that  the  vendor 
was  not  to  make  use  of  any  fraud  or  j)ractice  to  conceal 
faults.  The  learned  Judge  adhered  to  the  doctrine  of 
Lord  Ellenborough,  above  stated,  without  any  difficulty. 
Mr.   Justice   Chambrc   held,  there  must   be  evidence  of 

(*316) 


330  ^^  DEFECTS  IN  THE  QUALITY 

fraud  to  enable  the  Court  to  depart  from  the  written 
agreement.  Mr.  Justice  Gibbs  agreed  with  Lord  Ellen- 
borough's  doctrine.  Even  if  there  had  been  a  represen- 
tation it  would  not  have  availed.  He  held,  that  if  a  man 
brought  him  a  horse,  and  made  any  representaion  what- 
ever of  his  quality  and  soundness,  and  afterwards  they 
agreed  in  writing  for  the  purchase  of  the  horse,  that 
shortened  and  corrected  the  representations,  and  whatso- 
ever terms  were  not  contained  in  the  contract  would  not 
bind  the  seller.  But  the  learned  Judge  agreed  that 
fraud  would  not  be  done  away  by  the  contract,  and  he 
mentioned  the  case  of  a  sale  of  a  house,  where  the  seller 
being  conscious  of  a  defect  in  a  main  wall,  plastered  it  up 
and  papered  it  over,  and  it  was  held  that  as  the  seller  had 
expressly  concealed  it,  the  purchaser  might  recover(/). 
(*)As  the  law  now  stands,  unless  there  be  actual  fraud, 
the  written  contract  cannot  be  avoided  (I). 

But  the  ground  and  basis  of  an  action  in  a  case  of  this 
nature,  for  recovery  of  a  deposit,  where  the  contract  is  in 
fieri ;  or  of  damages,  where  the  contract  is  actually  exe- 
cuted, is  the  scienter ;  and,  therefore,  if  the  vendor  was 
not  aware  of  the  defect,  he  will  not  be  answerable  for  it. 
Nor  will  trifling  defects  be  a  sufficient  foundation  for  such 
an  action. 

Thus,  in  a  case(m)  where  a  purchaser  brought  an  ac- 
tion against  a  vendor,  to  recover  damages  for  having  sold 
him  a  house,  knowing  it  had  the  dry-rot ;  it  appeared, 
that  the  house  was  situated  in  a  clayey  soil,  and  that  the 
floor  lay  near  the  ground,  by  which  some  of  the  timbers 
had  rotted  ;  but  the  vendor  was  not  aware  of  the  defects, 
and   the  purchaser  was  nonsuited.     Lord   Kenyon  said, 

(/)  Pickering  «.  Dowson,  4  Taunt.  779.     See  Jones  t'.  Bowden,  ih. 
847 ;  Shepherd  v.  Kain,  3  Barn.  &  Aid.  240. 
(ni)  Bowles  v.  Atkinson,  N.  P,  MS. 

(I)  As  to  concealment  of  defects  of  title,  see  posL 
(*317) 


I 


OF  THE  ESTATE.  ggj 

the  circumstances  that  had  been  proved  in  this  case  might 
be  described  by  a  word  that  was  used  by  one  of  the 
witnesses ;  they  were  mere  bagatelles.  If  these  small 
circumstances  were  to  be  the  foundation  of  an  action, 
every  house  that  was  sold  would  produce  an  action.  If 
a  broken  pane  of  glass  that  might  be  found  in  a  garret 
window,  perhaps,  had  not  been  described  by  the  seller,  it 
would  be  ground  of  an  action.  If  he  was  to  consider 
himself  as  a  witness  in  the  cause,  he  could  say  he  had 
met  with,  something  of  this  kind,  and  he  never  thought 
himself  imposed  upon,  because  now  and  then  some  rotten 
boards  and  rotten  joists  might  be  found  about  a  house. 
Besides,  there  was  no  imposition,  no  mala  fides  in  this 
case. 

Although  the  purchaser  might,  with  proper  precaution, 
(*)have  discovered  the  defect ;  yet  if,  during  the  treaty, 
the  vendor  industriously  conceal  the  fact,  equity  will  not 
assist  him. 

Thus,  upon  a  suit  for  a  specific  performance,  the  de- 
fence was,  that  the  estate  was  represented  to  the  defend- 
ant as  clearing  a  net  value  of  90/.  per  annum,  and  no 
notice  was  taken  to  him  of  the  necessary  repair  of  a  wall 
to  protect  the  estate  from  the  river  Thames,  which  would 
be  an  out-going  of  50/.  per  annum.  And  it  appearing, 
upon  evidence,  that  there  had  been  an  industrious  con- 
cealment of  the  circumstances  of  the  wall  during  the 
treaty,  the  Lord  Chancellor  dismissed  the  bill,  but  with- 
out costs(w). 

And  here  a  case  may  be  mentioned,  where  an  estate 
appeared  to  be  subject  to  a  right  of  entry  to  dig  for  mines  ; 
the  purchaser  did  not  object  to  the  title  on  this  ground, 
but  insisted  upon  a  specific  performance  with  a  compen- 
sation, which  was  accordingly  decreed(o). 

(h)  Shirley  v.  Slratton,  1  Bro.  C.  C.  140. 
(o)  Seaman  r.  Vawdrey,  16  Ves.  jun.  390. 

(*318) 


5g2  O^  DEFECTS  IIS  THE  QUANTITY 

SECTION  III. 
Of  Defects  in  the  Quantity  of  the  Estate. 


If  a  purchaser  of  an  estate  thinks  he  has  purchased 
bona  fide  a  part  which  the  vendor  thinks  he  has  not  sold, 
that  is  a  ground  to  set  aside  the  contract,  that  neither 
party  may  be  damaged  ;  because  it  is  impossible  to  say, 
one  shall  be  forced  to  give  that  price  for  part  only  which 
he  intended  to  give  for  the  whole ;  or  that  the  other  shall 
be  obliged  to  sell  the  whole  for  what  he  intended  to  be 
the  price  of  part  only(j3).  Upon  the  other  hand,  if  both 
(*)understood  the  whole  was  to  be  conveyed,  it  must  be 
conveyed.  But  again,  if  neither  understood  so,  if  the 
buyer  did  not  imagine  he  was  buying  any  more  than  the 
seller  imagined  he  was  selling  the  part  in  question,  then 
a  pretence  to  have  the  whole  conveyed  is  as  contrary  to 
good  faith  on  his  side,  as  a  refusal  to  sell  would  be  in 
the  other  case(5^)(197). 

If  an  estate  be  sold  at  so  much  per  acre,  and  there  is 
a  deficiency  in  the  number  conveyed,  the  purchaser  will 
be  entitled  to  a  compensation,  although  the  estate  was 
estimated  at  that  number  in  an  old  survey(r)(198). 

{f)  See  13  Ves.  jun.  427  ;  and  see  Higginson  v.  Clowes,  15  Ves. 
jun.  616,  stated,  as  to  this  point,  supra,  p.  38. 

iq)  Per  Lord  Thurlow.  See  1  Ves.  jun.  211  ;  and  see  6  Ves.  jun. 
339. 

(r)   Sir  Cloudesley  Shovel  v.  Bogan,  2  Eq.  Ca.  Abr.  688,  pi.  I. 

(197)  See  JVelson  v.  Matthews,  2  Hen.  &  Munf.  164. 

(198)  See  Quesnel  v.  Woodlief,  2  Hen.  &  Munf.  173.  in  note.  Jol- 
life  V.  Hite,  1  Call,  301.  JVelsony.  Carrington,4.  Munf.  332.  Carter 
V.  Campbell,  Gilmer,  159. 

(-*319) 


OF  THE  ESTATE.  gng 

The  rule  is  the  same,  though  the  land  is  neither  bought 
nor  sold  professedly  by  the  acre  ;  the  presumption  is,  that 
in  iixing  the  price,  regard  was  had  on  both  sides  to  the 
quantity  which  both  suppose  the  estate  to  consist  of. 
The  demand  of  the  vendor,  and  the  offer  of  the  purchaser, 
are  supposed  to  be  influenced  in  an  equal  degree  by  the 
quantity,  which  both  believe  to  be  the  subject  of  their 
bargain.  The  general  rule  therefore  is,  that  where  a 
misrepresentation  is  made  as  to  the  quantity,  though 
innocently,  the  right  of  the  purchaser  is  to  have  what  the 
vendor  can  give,  with  an  abatement  out  of  the  purchase- 
money,  for  so  much  as  the  quantity  falls  short  of  the 
representation(5)(199). 

But  where  the  lands  in  a  conveyance  are  mentioned  to 
contain  so  many  acres  by  estimation,  or  the  words  "  more 
or  less"  are  added,  if  there  be  a  small  portion  more  than 
the  quantity  ,  the  vendor  cannot  recover  it ;  and  if  there 
be  a  sYnall  quantity  less,  the  purchaser  cannot  obtain  any 
compensation  in  respect  of  the  deficiency(^).  Indeed, 
(*)a  case  is  said  to  have  been  decided,  where  a  man  con- 
veyed his  land  by  the  quantity  of  one  hundred  acres, 
were  it  more  or  less,  and  it  was  not  above  sixty  acres ; 
but  the  purchaser  had  no  relief,  because  it  was  his  own 
laches(M)(200). 

(s)  Hill  V.  Buckley,  17  Ves.  394,  ^)cr  Sir  "William  Grant. 

{t)  Twyford  v.  Warcup,  Finch,  310.  See  Marquis  of  Townshend 
V.  Stangroom,  6  Ves.  jun.  328  ;  Rushworlh's  case,  Clay.  46  ;  Neale  v. 
Parkin,  1  Esp.  Ca.  229. 

(tt)   Anon.  2  Freem.  106. 

(199)  See  Waters  v.  Travis,  9  Johns.  Rep.  465.  on  appeal.  And 
where  there  is  a  great  deficiency  in  the  quantity  of  land,  the  purchaser 
is  entitled  to  have  the  contract  rescinded  in  toio.  Glover  v.  Smith,  1 
Des.  433.     See  also,  Peay  v.  Briggs,  2  Rep.  Con.  Ct.  100. 

(200)  In  Quesnel  v.  Woodlief,  2  Hen.  &  Munf.  173,  174;  in  note, 
the  court  say,  that  the  words  "  more  or  less,"  inserted  in  a  deed,  "  should 
he  restricted  to  a  reasonable  or  usual  allowance  for  small  errors  in  sur- 

(*320) 


384  ^^  DEFECTS  IN  THE  QUANTITY 

That  however  was  the  case  of  an  actual  conveyance. 
Where  the  contract  rests  in  fieri,  the  general  opinion  has 

veys,  and  for  variations  in  instruments."  See  Smith  v.  Evans,  6  Binn. 
102.  Grantland  v.  Wight,  2  Munf.  179.  Jollife  v.  Hite,  1  Call,  301. 
JVfann  ^  Toles  v.  Pearson,  2  Johns.  Rep.  37.  Snow  v.  Chapman,  1 
Root,  528.  Howes  v.  Barker,  3  Johns.  Rep.  606.  Powell  v.  Clark, 
5  Mass.  Rep.  355.  /fot«e  v.  Bass,  2  Mass.  Rep.  380.  Jackson  v. 
Barringer,  15  Johns.  Rep.  471.  Jackson  v.  Defendorf,  1  Caines' 
Rep.  493.  Thomas  v.  Perry,  1  Peters'  Rep.  49,  58.  Dayne  v.  King, 
1  Yeates,  322.  ^oar  v.  M'Cormick,  1  Serg.  &  Rawle,  166.  F/ee/  v. 
Haiokins,  6  Munf.  188.  Pringle  v.  Witten^s  Exrs.  1  Bay,  259.  Gray 
V.  Handkinson,  1  Bay,  278.  Wainwright  v.  Read,  1  Des.  573.  Jones' 
Dev.  V.  Carter,  4  Hen.  &  Munf.  184.  //i<//  v.  Cunningham'' s  Exr.  1 
Munf.  330,  335,  336. 

"In  a  conveyance  of  land  by  deed,  in  which  the  land  is  cer- 
tainly bounded,  it  is  very  immaterial,  whether  any  or  what  quantity  is 
expressed  :_for  the  description  by  the  boundaries  is  conclusive.  And 
when  the  quantity  is  mentioned  in  addition  to  a  description  of  the  boun- 
daries, without  any  express  cevenant  that  the  land  contains  that  quan- 
tity, the  whole  must  be  considered  as  mere  description.  (Per  Parsons, 
C.  J.  5  Mass.  155  ;  S.  P.  in  Large  v.  Penn,  6  S.  &  R.  488.)  In  the 
latter  case  cited  in  which  the  plaintiff  sued  the  defendant  for  breach  of 
covenant,  it  appeared  that  the  deed  described  the  land  as  "  containing 
two  acres  and  three  quarters  of  an  acre,  being  the  lot  mentioned  in  a 
plan  or  map  of  land  (number  18,  R.  M.  Penn,)  and  which,  upon  a  par- 
tition and  division  of  the  said  W.  M.,  was,  inter  alia,  allotted  and  as- 
signed unto  the  said  R.  and  M.  Penn,  her  heirs  and  assigns  forever." 
And  then  followed  a  special  covenant  of  warranty  in  the  usual  form. 
The  question  being  whether  there  was  a  covenant  that  the  quantity  of 
land  should  amount  to  two  acres  and  three  quarters  ?  The  court  held, 
that  there  was  not.  It  is  the  boundaries  to  which  the  grantee  must  look  ; 
he  has  a  right  to  all  the  land  within  them :  and  the  quantity  is  intro- 
duced, not  by  way  of  covenant,  but  of  description. 

So,  in  Davis  et  al.  v.  Rainsford,  17  Mass.  R.  207,  Wilde,  J.  in  de- 
livering the  opinion  of  the  court  said — "  no  rule  of  law  can  be  more 
firmly  established,  than  that  whenever,  in  the  description  of  land  con- 
veyed by  deed,  known  monuments  are  referred  to  as  boundaries,  they 
must  govern ;  although  neither  courses,  nor  distances,  nor  the  com- 
puted contents,  correspond  with  such  boundaries.  But  this  fundamen- 
tal rule  in  the  construction  of  deeds  is  not  inflexible,  but  like  other  rules 
of  law,  it  must  sometimes  yield  to  exceptions.  The  reason  why  mon- 
uments are  to  govern  the  courses  and  distances  in  a  deed,  is  that  the 


OF  THE  ESTATE.  oor 

been  that  the  purchaser,  if  the  quantity   he  considerably 
less  than  it  was  stated,  will  be  entitled  to  an  abatement, 

former  are  less  liable  to  mistakes.  When  the  reason  ol'  the  rule  ceases, 
the  rule  is  not  to  be  applied.  Whoa  lines  are  laid  down  on  a  map  or 
plan,  and  are  referred  to  in  a  deed,  the  courses,  distances,  and  other 
particulars  appearing  on  such  plan,  are  to  be  as  much  regarded  as  the 
true  description  of  the  land,  as  they  would  be,  if  expressly  recited  in  the 
deed.  This  is  a  familiar  rule  of  construction  in  all  those  cases,  where- 
in no  other  description  is  given  in  the  title  deeds,  than  the  number  of 
the  lot  on  a  surveyor's  plan  of  a  township -or  other  large  tract  of  land. 

The  land  in  question  was  conveyed  to  the  plaintiffs  at  the  time  they 
were  about  erecting  a  store  ;  and  it  was  stipulated  in  the  deed,  that  the 
southwardly  wall  of  the  store  should  be  placed  exactly  on  the   line  last 
mentioned  in  the  description  of  the  land  conveyed.     The  store  was  ac- 
cordingly erected,   and   the   southwardly  wall  was  placed    as   it  now 
stands,  in  conformity  to  the  admeasurement,  and  to  the  plan,  no  objec- 
tion being  then  made  to  its  position  by  the  grantor.     This  wall,  when 
built,  was  a  monument ;  and  it  was  referred  to  in  the  deed,  although  it 
was  not  at  that  time  erected.     This  part  of  the  case  is  similar  to  the 
case  of  Blakepeace  v.  Bancroft,   12   Mass.  469,  excepting  the  wall  in 
that  case  did  not  exactly  coincide  with  the  line,  as  described  in  the  deed  ; 
and  in  the  case  before  us  it  does.     The  case  last  cited  was  thus — "  a 
certain  piece  of  land  in  C.  measuring  on  W.  street  22|  feet,  and  keep-/ 
ing  the  same  width  70  feet  back  to  another  way,  with  all   the  privileges 
and  appurtenances  to  the  said  lot  belonging,  meaning  to  convey  thereby 
the  same  lot  which  was  conveyed  to  the  said  grantor  by  M'Neil,  by  his 
deed  dated,  &c.,  including  one  half  of  the  brick  wall  mentioned  in  the 
deed  last  aforesaid."     The  plaintiff  sued  for  breach  of  covenant  in  re- 
spect to  one  half  the  brick  wall,  with  the  land   under  the  same  ;  there 
being  no  question  as  to  the  residue.     It  appeared  at  the  trial,  whic^  was 
had  before  Jackson,  J.,  that  one  Porter  was  seized  of  this  lot,  and  also 
of  another  lot  adjoining.     He  conveyed  this  to  R.,  and  the  other  to  one 
W.,  who  conveyed  to  S.     Then  R.  and  S.  agreed  to  exchange  lots  and 
by  direction  of  the  latter  the  former  conveyed  to  Neil.     At  the  time  of 
the  conveyance  by  P.,  he  owned  a  third  lot  on  which  was  a  brick  house; 
and  the  deed  to  W.  included  one  half  of  the  wall  of  that  house.     R.  in- 
lending  to  build  on  the  lot  he  received  from  S.  in  exchange  says  in  the 
deed  to  Neil  "  I  do  also  convey  to  said  Neil  the  one  half  of  a  brick 
wall  that  I  hereby  engage  to  erect  on  the  adjoining  lot  now  owned  by 
S.,  which  the  said  S.  is  this  day  to  convey  to  me."     S.  conveyed  to  R. 
one  half  the  wall  of  the  house  aforesaid;  and  R.  undertaking  to  convey 
to  the  said  appointee  of  S.  one  half  of  the  wall  ^hich  he  was  to  build. 
VOL.  I.  49 


gog  OF  DEFECTS  IN  THE  QUANTITY 

although  the  agreement  contain  the  words  more  or  lesSy 
or  hy  estimation(x). 

(x)   Hill  V.  Buckley,  17  Ves.  394. 


But  the  wall  of  the  house  afterwards  built  by  R.  was  built  wholly  on 
R.'s  lot  contrary  to  his  intention,  which  was  to  place  one  half  of  the 
wall  adjoining  to  Neil  on  his  lot.  The  latter  conveyed  to  defendant  re- 
ferring to  R.'s  deed  and  "including  the  one  half  of  the  brick  wall  men- 
tioned in  said  deed."  The  defendant  having  conveyed  his  title  to  the 
plaintiff;  and  the  Court  held  that  Neil  was  seized  of  thg  lot,  so  as  to 
include  one  half  of  the  wall,  which  R.  built  for  his  use,  and  did  of  course 
convey  the  same  to  the  defendant,  who  became  seized  until  he  parted 
with  his  title  to  the  plaintiff.  "Whether  this  seizin  was  an  indefeasible 
one  or  not,  was  immaterial  m  that  action.  The  monument  set  up  after 
the  delivery  of  the  deed,  will  conclude  the  grantor,  even  though  it  should 
not  agree  with  the  lines  specified  in  the  deed. 

And  if  a  survey  is  referred  to  in  a  deed^  that  is  to  be  regarded,  though 
the  boundaries  mentioned  in  the  deed  might  exclude  the  land  included 
in  the  survey.     Limt  v.  Holland,  14  ib.  149. 

If  land  is  bounded  on  a  road,  the  land  over  which  the  road  runs  is 
excluded.  Alden  v.  JMitrdock,  13  ib.  So^  to  the  hank  of  a  stream,  it 
excludes  tlie  stream.  Hatch  v.  Dwight  <§•  al.  17  ib.  298.  But  if  the 
boundary  is  by  a  river,  it  extends  to  the  thread  of  the  river,  unless  pre- 
vious grants  negative  this  construction.     14  ib.  14.9. 

In  Crosby  v.  Parker,  (4  Mass.  110.)  where  the  point  in  dispute  was 
stated  by  Chief  Justice  Parsons  in  delivering  the  opinion  of  the  Court 
thus.  "  E.  &  A.  Jefts  were  once  seized  in  fee  of  the  several  parcels  of 
land  mentioned  in  the  case,  one  of  which  was  claimed  by  Wilson,  ano- 
ther by  the  demandant,  and  a  third  by  J.  Jefts,  by  separate  deeds  from 
E.  &  A.,  and  under  J.  Jefts  the  tenant  claims :  And  to  find  tlie  issue 
in  the  cause  it  was  necessary  to  ascertain  the  north-east  corner  of  the 
parcel  of  land  conveyed  to  the  demandant  by  the  deed  of  the  said  E.  & 
A.  dated  1S05.  This  deed  places  the  north-east  corner  at  a  stake  and 
stones  by  Wilson's  land  on  a  certain  highway.  The  next  inquiry  then 
is,  where  was  Wilson's  land  ?  He  had  before  purchased  his  parcel  of 
the  same  grantors  by  a  deed  duly  executed,  and  the  stake  and  stones 
standing  by  this  land  of  Wilson's  is  agreed.  The  tenant  insists  that 
this  stake  and  stones  is  the  north-east  corner  of  the  demandant's  land  ; 
and  if  it  is,  the  verdict  is  right.  The  same  Wilson  had  contracted  with 
J.  Jefts,  the  brother  and  agent  of  the  grantors,  and  had  paid  him  for  half 
an  acre  of  land  to  the  southward  of  his  first  purchase,  and  adjoining  on 
the  same  highway,  at  the  south-easterly  corner  of  which  was  a  stake  and 


OF  THE  ESTATE.  007 

But  ill  a  case  where  the  estate  was  stated   to  contain 
by  estimation  forty-one  acres,  he  the  same  more  or  less  ; 

stones  by  the  same  highway,  which  would  be  the  north-east  corner  of 
Crosby's  land,  if  it  bounded  northwardly  on  the  half  acre,  which  he  con- 
tends that  it  did  :  And  if  this  last  stake  and  stones  is  the  north-east 
corner  of  Crosby's  land,  the  verdict  is  wrong.  The  question  therefore 
is  reduced  to  this,  whether  Crosby's  land  adjoining  northwardly  on  Wil- 
son's lirst  purchase,  of  which  he  had  a  conveyance,  or  on  the  half  acre, 
of  which  he  had  no  conveyance. 

Wilson,  after  his  bargain  with  J.  Jefts,  occupied  the  half  acre  for  two 
years,  as  he  would  occupy  his  own  land,  including  the  time  when  Cros- 
by's deed  was  executed,  but  he  did  not  claim  the  land  and  would  have 
informed  any  inquirer  that  he  had  no  title  to  it,  but  had  contracted  with 
J.  Jefts  for  one.  In  1806,  he  applied  to  the  owners,  E.  &  A.  Jefts  for 
a  title,  but  they  refusing  to  give  him  one,  he  abandoned  the  occupation. 
It  further  appears  that  Crosby's  deed  conveys  to  him  his  land,  loith  all 
the  buildings  thereon,  and  if  he  is  bounded  on  Wilson's  first  purchase, 
there  will  be  only  a  barn  on  his  land  ;  but  if  he  is  bounded  on  the  half 
acre,  there  will  be  a  house  also  included. 

For  the  tenant  it  appears,  that  neither  the  grantor  nor  Parker  had  any 
knowledge  that  J.  Jefts  had  bargained  with  Wilson  for  the  half  acre  : 
and  as  to  the  expression  of  "  all  the  buildings,"  it  was  found  that  the 
grantors  purchased  all  these  parcels  of  S.  P.  by  a  deed  conveying  them 
with  all  the  buildings  thereon,  when  in  fact  there  were  no  buildings  there- 
on, they  having  been  erected  afterwards  :  and  that  all  the  land,  to  which 
Wilson  had  any  title  on  record,  was  his  first  purchase.  The  verdict  is 
right,  because  Crosby's  is  northwardly  on  Wilson's  land,  and  Wilson's 
first  purchase  is  all  the  land  that  he  in  fact  owned  ;  and  all  the  land,  of 
which  he  had  any  title  on  record,  by  which  the  tenant  could  ascertain  the 
boundaries,  and  all  the  land,  which  the  grantors  of  Crosby,  who  were  also 
the  grantors  of  Wilson,  could  contemplate  as  Wilson's  land.  And  if 
the  first  purchase  of  Wilson  is  not  a  boundary  of  Crosby's  land,  then 
there  will  be  an  half  acre  between  Crosby  and  Wilson,  the  property  of 
the  grantors,  not  conveyed,  and  Crosby's  northern  boundary  will  be  on 
other  land  of  the  grantors.     Judgment  on  the  verdict. 

In  Worthington  et  al.  v.  Hyllyer,  4  Mass.  R.  197,  where  the  estate  in- 
tended to  be  conveyed  included  several  particulars,  which  were  neces- 
sary to  ascertain  the  identity  of  the  estate  ;  held,  that  nothing  could 
pass  by  the  conveyance,  except  what  agreed  to  every  particular  in  the 
description ;  but  every  deed  ought  to  be  construed,  if  it  can,  that  the 
intent  of  the  parties  may  prevail,  and  not  be  defeated.  If  the  de- 
scription in  a  conveyance  be  so  uncertain,  that  it  cannot  be  known  wluit 


388  OF  DEFECTS  IN  THE  QUANTITY 

and  upon  an  admeasurement,  the  quantity  proved  to  be 
only  between  thirty-five  and  thirty-six  acres  ;  and  the 
purchaser  claimed  an  abatement ;  the  Master  of  the  Rolls 
decided  against  the  claim.  His  Honor  said,  that  the 
effect  of  the  words  "  more  or  less"  added  to  the  state- 
ment of  quantity  had  never  been  yet  absolutely  fixed  by 
decision ;  being  considered  sometimes  as  intending  to 
cover  only  a  small  difference  the  one  w-ay  or  the  other  ; 

estate  was  intended,  the  conveyance  is  void.  In  a  deed-poll  where 
there  is  a  doubt,  the  construction  must  be  against  the  grantor.  But  a 
description  of  land  by  a  false  reference  must  be  rejected,  if  the  land  is 
sufficiently  ascertained  without. 

Parsons,  C.  J.  said. — It  seems  to  be  a  general  rule,  that  when  the 
description  of  the  estate"  intended  to  be  conveyed  includes  several  par- 
ticulars, all  of  which  are  necessary  to  ascertain  the  estate  to  be  conveyed, 
no  estate  will  pass,  except  such  as  will  agree  to  every  particular  of  the 
description.  Thus  if  a  man  grant  all  the  land  in  his  own  occupation  in 
the  town  of  W.,  no  estate  can  pass,  except  what  is  in  his  own  occupa- 
tion, and  is  also  situate  in  that  town. 

But  if  the  description  be  sufficient  to  ascertain  the  estate  intended  to 
be  conveyed,  although  the  estate  will  not  agree  to  some  of  the  particu- 
lars in  the  description,  yet  it  shall  pass  by  the  conveyance,  that  the  in- 
tent of  the  parties  may  be  effected.  Thus  if  a  man  convey  his  house  in 
D.,  which  was  formerly  R.  C.'s,  when  it  was  not  R.  C.'s  ;  but  T.  C.'s, 
the  house  in  D.  shall  pass,  if  the  grantor  had  but  one  house  in  D.,  be- 
cause by  the  description  of  his  house  in  D.  the  estate  intended  to  be 
conveyed  is  sufficiently  ascertained. 

In  the  case  before  the  court,  the  mortgagor  has  described,  as  the  es- 
tate to  be  conveyed,  all  that  his  farm  of  land  in  TV.,  on  which  he  then 
lived,  containing  100  acres,  with  his  divelling  house  and  bam  thereon 
standing.  This  is  sufficient  to  ascertain  the  estate  to  be  conveyed  ;  and 
if  no  other  particulars  were  inserted,  there  could  be  no  doubt.  But  he 
adds  that  the  farm,  on  which  he  lived,  was  the  lot  JYo.  17,  in  the  first 
division  oj  land  there  and  included  within  certain  limits  mentioned. 
The  limits  of  this  lot  are  truly  described,  but  in  fact  the  farm,  on  which 
be  lived,  was  not  No.  17,  but  a  different  parcel  of  land.  By  the  rule 
then  this  particular  of  the  description  is  to  be  rejected,  because  without 
it  the  description  is  sufficiently  certain  ;  and  because  if  it  be  essential, 
the  deed  will  be  void.  Indeed  rather  than  the  deed  should  be  void,  a 
construction  ought  to  be  adopted,  on  which  both  the  farm  and  the  lot 
should  be  conveyed. 


OF  THE  ESTATE.  oog 

sometimes  as  leaving  the  quantity  altogether  uncertain, 
and  throwing  upon  the  purchaser  the  necessity  of  satisfy- 
ing himself  with  regard  to  it.  In  this  instance,  the 
description  was  rendered  still  more  loose  by  the  addition 
of  the  words  "  by  estimation."  She  estimated  extent  of 
ground  frequently  proves  quite  different  from  its  contents 
by  actual  admeasurement.  It  cannot  be  contended  that 
the  terms  "  estimated"  and  "  measured"  have  the  same 
meaning.  If  a  man  was  told  that  a  piece  of  land  was 
never  measured,  but  was  estimated  to  contain  forty-one 
acres,  would  that  representation  be  falsified  by  showing 
(*)that,  when  measured,  it  did  not  contain  the  specified 
number  of  acresV  The  only  contradiction  to  that  propo- 
sition would  be,  that  it  had  not  been  estimated  to  contain 
so  much(i/)(201). 

(y)  Winch  v.  Winchester,  1  Ves.  &  Beam.  375. 

(201)  See  Mlson  v.  Matthews,  2  Hen.  &  Munf.  164.  It  was  de- 
cided in  Carter  v.  Campbell,  in  the  Court  of  Appeals  in  Virginia, 
(Gilm.  R.  159.)  that  where  a  sale  is  by  the  acre,  the  right  of  ascertain- 
ing the  quantity  by  a  survey,  exists,  whether  expressly  reserved  or  not ; 
and  if  no  time  be  limited  for  making  the  election  to  survey,  it  may  be 
done  at  any  time  before  the  whole  business  is  closed.  But  where  the 
articles  of  agreement  have  been  carried  into  effect,  by  a  conveyance 
from  the  vendor,  and  bond  for  the  purchase  money  from  the  vendee, 
without  a  survey,  there,  in  general.,  the  contract  is  considered  as  closed. 
But  there  are  cases,  which  are  exceptions.  For  instance,  where  the 
real  ditfers  so  much  from  the  estimated  quantity  of  land,  as  to  make  it 
evident,  either  that  both  parties  were  under  a  misapprehension,  or  one 
of  them  guilty  of  a  gross  fraud.  (Per  Tilghman,  C.  J.  in  Bailey  v. 
Snyder,  13  S.  &  R.  161.)  In  Smith  r.  Evans,  6  Binn.  102,  where 
the  sale  was  decided  to  be  for  a  sum  in  gross,  although  the  price  of 
twelve  shillings  per  acre  was  mentioned,  the  articles  had  been  carried  into 
execution,  by  a  conveyance  from  the  vendor,  and  bond  and  mortgage 
from  the  vendee  ;  "  a  circumstance  of  great  weight  with  me,  said  the 
Chief  Justice,  in  forming  an  opinion  in  that  case."  In  the  case  last 
cited  from  S.  &  R.,  that  circumstance  did  not  exist;  so  that  the  con- 
tract was  to  be  judged  of  only  by  the  articles  of  agreement.  Accord- 
ingly, it  was  there  held  to  be  a  sale  by  the  acre.     It  is  proper  to  observe, 

(*321) 


390  ^^  DEFECTS  IN  THE  QUANTITY 

The  case  of  Day  v.  Finn(e),  however,  seems  a  consi- 
derable authority,  that  at  least  the  words  more  or  less 
ought  only  to  clear  a  small  deficiency  where  the  contract 
rests  in  fieri.  There,  in  ejectment,  the  plaintiff  declared 
on  a  lease  for  years  of  a  house,  and  thirty  acres  of  land 
in  D. ;  and  that  /.  S.  did  let  to  him  the  said  messuage  and 
thirty  acres,  by  the  name  of  his  house  in  B..,  and  ten 
acres  of  land  there,  sive  plus  sive  minus  :  it  was  moved 
in  arrest  of  judgment ;  because  that  thirty  acres  cannot 
pass  by  the  name  of  ten  acres,  sive  plus  sive  minus  ;  and 
so  the  plaintiff  had  not  conveyed  to  him  thirty  acres,  for 
when  ten  acres  arc  leased  to  him  sive  plus  sive  minus, 
these  words  ought  to  have  a  reasonable  construction  to 
pass  a  reasonable  quantity,  either  more  or  less,  and  not 
twenty  or  thirty  acres  more.  Yelverton  agreed,  for  the 
word  ten  acres,  sive  plus  sive  minus,  ought  to  be  intended 
of  a  reasonable  quantity,  m5re  or  less,  by  a  quarter  of  an 
acre,  or  two  or  three  at  most ;  but  if  it  be  three  acres 
less  than  ten,  the  lessee  must  be  contented  with  it.  Quod 
Fenner  and  Crook  concesserunt,  and  judgment  was 
stayed. 

And  upon  a  motion  in  Portman  v.  Mill(«)  it  appeared 

(s)   Owen,  133  ;  and  see  the  cases  cited  above, 
(a)  2  Russ.  570. 

however,  that  the  land  was  not  certainly  described  ;  and  the  land  was 
sold  at  a  price  named  per  acre. 

A  conveyance  of  a  certian  number  of  acres  more  or  less  imply,  that 
the  boundaries  are  fixed,  and  may  contain  more  or  less.  They  show 
an  understanding  of  the  parties  that  the  boundaries  should  not  be  affect- 
ed by  a  surplus  or  deficiency.  Thus,  in  Glen  et  al.  v.  Glen,  4  S.  & 
R.  488,  the  deed  stated  that  the  grantor  conveyed  200  acres  more  or 
less.  The  parties  afterwards  had  it  surveyed  ;  the  survey  agreed, 
except  an  allowance  of  six  per  cent,  for  roads,  &c.  It  turned  out  how- 
ever, after  the  decease  of  the  parties,  that  the  tract  was  in  fact  surplus, 
about  13  acres  ;  and  held,  clearly,  that  the  heirs  could  not  recover  a 
consideration  for  the  excess  :  it  not  being  so  great  as  to  show  an  essen- 
tial mistake. 


OF  THE  ESTATE. 


391 


that  the  lands  were  described  as  containing,  by  estima- 
tion 349  acres,  or  thereabouts,  be  the  same  more  or  less, 
and  the  agreement  stipulated  that  the  parties  should  not 
be  answerable  for  any  excess  or  deficiency  in  the  quantity 
of  the  premises,  but  that  the  premises  should  be  taken  by 
the  purchaser  at  the  quantity,  whether  more  or  less  ;  and 
(*)the  actual  number  of  statute  acres  was  less  by  100  acres 
than  the  number  stated  in  the  contract.  Lord  Eldon  said, 
that  as  to  this  stipulation,  he  never  could  agree  that  such 
a  clause  (if  there  were  nothing  else  in  the  case)  would 
cover  so  large  a  deficiency  in  the  number  of  acres  as  was 
alleged  to  exist  there. 

But  however  the  rule  may  be  finally  settled,  yet  a  seller 
knowing  the  true  quantity,  would  not  be  allowed  to  prac- 
tice a  fraud,  by  stating  a  false  quantity,  with  the  addition 
of  the  words  "  more  or  less,"  or  the  like(6)(202). 

If  an  estate  be  represented  as  containing  a  given 
quantity,  although  not  professedly  sold  by  the  acre,  the 
circumstance  that  the  purchaser  was  intimately  acquainted 
with  the  estate,  would  not  necessarily  imply  knowledge 
of  its  exact  contents  ;  while  a  particular  statement  of  the 
quantity  would  naturally  convey  the  notion  of  actual  ad- 
measurement :  and  therefore  the  Court  would  not  be 
warranted  in  inferring  that  the  purchaser  knew  the  real 
quantity (c).  For,  if  the  purchaser  did  know  the  real 
quantity,  of  course  he  could  not  claim  any  allowance  for 
the  deficiency. 

In  a  late  case(d)j  the  agreement  was  to  sell  an  estate 
"  containing  the  several  quantities  after  mentioned,  that  is 
to  say,  by  the  plan  drawn  by  Mr.  F.  in  1792;"  the 
agreement  then  proceeded  to  state  the  numbers  and  par- 

(6)  See  Duke  of  Norfolk  v.  Worthy,  1  Camp.  Ca.  337  ;  supra,  p. 
38,  and  1  Ves.  &  Beam.  377. 

(c)  Winch  V.  Winchester,  1  Ves.  &  Beam.  375. 

(d)  Cell  V.  Watson,  16  Nov.  1825,  MS. 

(202)   See  JVelsony.  Matthews,  2  Hen.  &  Munf.  164. 

(*322) 


392  *^F  DEFECTS  IN  THE  QUANTITY 

ticular  quantities  of  each  close,  and  then  proceeded  to 
add,  "  containing  altogether  about  101^  3'.  29^."  There 
was  a  deficiency  of  2=^.  in  two  closes  which  together  were 
stated  to  contain  8^.  V.  4''.  It  was  held  that  the  pur- 
chaser was  entitled  to.  an  abatement,  as  the  quantity  of 
each  close  was  particularly  specified. 

(*)The  principle  upon  which  an  abatement  in  these  cases 
is  made,  is,  to  place  the  parties  in  the  situation  in  which 
they  would  have  stood,  if  there  had  been  no  misrepre- 
sentation. Therefore,  where  a  man  purchased  a  wood, 
which  was,  by  mistake,  represented  to  contain  nearly 
twenty-six  acres  more  than  it  did,  but  the  purchaser  was, 
in  the  course  of  the  negotiation,  furnished  with  the  value 
of  the  woods  qua  wood,  so  that  he  obtained  the  right 
quantity  of  wood  but  not  of  soil,  the  abatement  was 
decreed  to  be  only  so  much  as  soil  covered  with  wood 
would  be  worth,  after  deducting  the  value  of  the  wood(e). 

Where  lands  are  showai  to  a  purchaser  as  part  of  his 
purchase,  he  will  be  entitled  to  them,  although  expressly 
excepted  in  his  conveyance  by  name,  provided  he  did  not 
know  them  by  that  name(/j(203). 

So  if  a  man  purchase  an  estate  by  a  particular,  and  in 
the  conveyance  part  of  the  land  is  left  out,  equity  will 
relieve  him(^)  ;  but  it  must  be  clear  that  he  did  pur- 
chase by  the  particular,  because  it  is  not  a  writing  within 
the  statute  of  frauds ;  and,  therefore,  unless  that  be  the 
case,  or  the  agreement  can  be  otherwise  proved,  the 
Court  cannot  relieve(/i). 

(e)  Hill  r.  Buckley,  17  Ves.  jun.  394. 

(/)   Oxwick  V.  Brockett,  1  Eq.  Ca.  Abr.  355,  pi.  6. 

(g-)  Prec.  Cha.  307,  arguendo  ;  and  see  Nelson  v.  Nelson,  Nels. 
Cha.  Rep.  7. 

{h)  Cass  11.  Waterhouse,  Prec.  Cha.  29.  See  Clinan  v.  Cooke,  1 
Scho.  &  Lef.  22  ;  and  see  ch.  3,  sufva;  and  2  Dow.  301. 

(203)  See  opinion  of  PARSONS,  Ch.  J.  in  Worthington  v.  Hyll- 
yer,  4  Mass.  Rep.  205. 
(*323) 


OF  THE  ESTATE.  qqo 

On  the  other  hand,  the  Court  will  cqiia]ly  relieve 
a  vendor,  where  more  land  has  passed  than  was  con- 
tracted for ;  although  in  an  early  caseCi)(I)  this  relief 
(*)was  denied ;  because  the  defendant  was  a  purchaser 
upon  valuable  consideration.  But  it  is  now  clear,  that  if 
land  be  expressly  conveyed,  or  pass  by  general  words, 
\^  hich  was  not  mentioned  in  the  particular  by  which  the 
purchase  was  made,  or  was  not  mtended  to  be  conveyed, 
the  purchaser  will  be  decreed  to  re-convey  it(/c). 

And  where  a  purchaser  took  a  conveyance  of  an  estate 
from  his  own  instructions,  he  was  held  not  to  be  entitled 
to  lands  answering  the  general  description  in  the  adver- 
tisements of  sale,  but  which  were  not  mcluded  in  his 
conveyance,  nor  in  a  more  particular  description  from 
which  he  prepared  his  instructions(/). 

To  come  to  a  right  conclusion  on  this  branch  of  our 
subject,  we  must  be  informed  that  an  acre  does  not  always 
contain  the  same  superficial  quantity  of  land.  The  word 
acre  at  first  denoted,  not  a  determined  quantity  of  land, 
but  any  open  ground  or  field.  It  afterwards  signified  a 
measured  portion  of  land,  but  the  quantity  varied,  and  was 
not  fixed  until  the  statute(I)  de  terris  mensura7idis(tn), 
according  to  which  an  acre  contains  one  hundred  and 
sixty  square  perches  ;  so  that  every  acre  is  a  superficies 

(i)   Clifford  v.  Laughton,  Toth.  83. 

(k)  Tyler  v.  Beversham,  Rep.  teinjy.  Finch,  80  ;  2  Ch.  Ca.  195. 
See  Gibson  v.  Smith,  Barnard.  Ch.  Ca.  491. 

(/)   Calvcrley  v.  Williams,  1  Ves.  jun.  210. 

(m)  33  Edsv.  I.  ;  and  see  24  H.  VIII.  c.  4 ;  2  Inst  737  ;  Co.  Litt. 
G9  a  ;  Spehn.  Gloss,  v.  Acra,  particata,  lerr(K,ptrlica,  pes  forcsice,  rnila 
terne.     Cow.  Interp.  v.  Acre. 

(I)  Probably  the  defendant  had  purchased  without  notice  from  tho 
first  purchaser. 

(I)  It  was  formerly  holdcn  not  to  be  a  statute,  but  only  an  ordi- 
nance. Stowe's  case,  Cro.  Jac.  603  ;  but  this  has  since  been  overrul- 
ed.    Rex  V.  Everard,  1  Lord  Raym.  638. 

VOL.    I.  50  (*324) 


^Q^  OF  DEFECTS  IN  THE  QUANTITY 

of  forty  perches  long,  and  four  broad  ;  or  in  that  propor- 
tion, be  the  length  or  breadth  more  or  less.  The  length 
of  the  perch  was,  previously  to  the  statute  of  Edward, 
fixed  at  five  yards  and  a  half,  or  sixteen  feet  and  a  half, 
(^)by  the  statute  called  compositio  ulnarum  et  periica- 
rum(n),  and  the  act  of  Edward  must  of  course  be  constru- 
ed with  reference  to  this  standard.  Lord  Kenyoo  seems 
to  have  thought  it  impossible  to  contend,  that  a  custom 
should  prevail  that  a  less  space  of  ground  than  an  acre 
should  be  called  an  acre(o) ;  but  in  several  places  the 
perch  is  measured  with  rods  of  different  lengths,  and 
notwithstanding  Lord  Kenyon's  dictum,  consuetudo  loci 
est  observanda(p),  so  that  a  greater  or  less  space  of  ground 
than  a  statute  acre  may,  in  compliance  with  the  custom  of 
the  place  where  the  land  lies,  be  called  an  acre.  In  some 
places  the  perch  is  measure  by  a  rod  of  twenty-four  feet, 
in  some  by  one  of  twenty  {eet(q),  and  in  others  by  one  of 
sixteen  feet(r).  And  we  are  now  to  inquire  in  what 
cases  the  custom  of  the  country  in  this  respect  shall  or 
shall  not  prevail. 

In  adversary  writs  the  number  of  acres  are  accounted 
according  to  the  statute  measure(5),  but  in  fines,  and 
common  recoveries,  which  are  had  by  agreement  and 
consent  of  parties,  the  acres  of  land  are  according  to  the 
customary  and  usual  measure  of  the  country,  and  not  ac- 
cording to  the  statute(^). 

(n)   See  4  Inst.  274. 

(o)  Noble  V.  Durell,  3  T.  Rep.  271  ;  and  sec  Hockin  r.  Cooko,  4 
T.  Rep.  314 ;  Master  of  St.  Cross  v.  Lord  Howard  de  Walden,  6  T. 
Rep.  338. 

(j9)  6  Rep.  67.  a. 

{q)  Crompt.  on  Courts,  222,  who  cites  a  case  in  the  Exchequer,  re- 
lated to  him  by  one  of  the  Barons  ;  and  also  47  E.  III.  [fo.  18  a,  p!. 
35;]  and  see  Barksdale  v.  Morgan,  4  Mod.  186. 

(r)  Co.  Litt.  3  b.     See  Dalt.  c.  112,  s.  25. 

(s)  Andrew's  case,  Cro.  Eliz.  476,  cited. 

(/)  Sir  John  Bruyn's  case,  6  Co.   67  a,  cited  ;  Waddy  r.  Newton, 

(*326) 


OF  THE  ESTATE. 


395 


So,  which  is  more  to  our  present  purpose,  where  a  mau 
(*)agrees  to  convej(i*),  or  actually  conve_ys(.i')  any  given 
mumber  of  acres  of  land,  which  are  known  by  estimations 
or  limits,  there  the  acres  shall  be  taken  according  to  the 
estimation  of  the  country  where  the  land  lies,  be  they 
more  or  less  than  the  measure  limited  by  the  statute  ;  for 
they  pass  as  they  are  there  known,  and  not  according  to 
the  measure  by  statute. 

But  if  a  man  possessed  of  a  close  containing  twenty 
acres  of  land  by  estimation,  which  is  not  eighteen,  grant 
ten  acres  of  the  same  land  to  another,  there  the  grantee 
shall  have  ten  acres  according  to  the  measure  fixed  by 
the  statute,  because  the  acres  of  such  a  close  are  not 
known  by  parcels,  or  metes  and  bounds,  and  so  this  case 
differs  from  the  one  immediately  preceding  it(y).  And 
it  is  said,  that  if  one  sells  land,  and  is  obliged  that  it 
contain  twenty  acres,  the  acres  shall  be  taken  according 
to  the  law,  and  not  according  to  the  custom  of  the 
country(2). 

But  the  law  upon  this  subject  is  altered  by  an  Act  of 
the  5th  of  the  late  King,  intituled,  "  An  Act  for  ascer- 
taining and  establishing  Uniformity  of  Weights  and 
Measures."  After  providing  that(rt)  the  straight  line  or 
distance  between  the  centres  of  the  two  points  in  the 
gold  studs  in  the  straight  brass  rod  now  in  the  custody 
of  the  clerk  of  the  House  of  Commons,  whereon  the 
words  and  figures,  "  standard  yard,  1760,"  are  engraved, 

8  Mod.  276.     Sec  Floyd  v.  Bethill,  1  Roll.  Rep.  420,  pi.  8  ;  and  see 
Treswallen  r.  Penhules,  2  Rolle's  Rep.  66  ;   12  Vin.  240. 

(u)  Some  V.  Taylor,  Cro.  Eliz.  665. 

(.r)  47  E.  III.  18  a,  pi.  35  ;  6  Co.  67  a ;  Morgan  v.  Tedcastle, 
Poph.  55 ;  Floyd  r.  Bethill,  1  Rolle's  Rep.  420,  pi.  8  ;  Andrew's  case, 
Cro.  Eliz.  476,  cited. 

(y)  Morgan  i\  Tcdcastle,  Poph-  55. 

(2)  Wing  V.  Earlc,  Cro.  Eliz.  267. 

(a)  S.  1,  c.  74. 

(*326) 


39g  OF  DEFECTS  IN  THE  QUANTITY 

shall  be  the  origmal  and  genuine  standard  of  that  measure 
of  length  or  lineal  extension  called  a  yard  ;  and  that  all 
(*)measures  of  length  shall  be  taken  in  parts  or  multiples, 
or  certain  proportions  of  the  said  standard  yard  ;  and  that 
one  third  part  of  the  said  standard  yard  shall  be  a  foot, 
and  the  twelfth  part  of  such  foot  shall  be  an  inch  ;  cmd 
that  the  pole  or  perch  in  length  shall  contain  Jive  such 
yards  and  a  half,  it  enacts,  that(6)  all  superficial  measure 
shall  be  computed  and  ascertained  by  the  said  standard 
yard,  or  by  certain  parts,  multiples  or  proportions  thereof; 
and  that  the  rood  of  land  shall  ^contain  1,210  square 
yaixis  according  to  the  said  standard  yard  ;  and  that  the 
acre  of  land  shall  contain  4,840  such  square  yards,  being 
160  square  perches,  poles  or  rods;  and  that(c)  from  and 
after  the  1st  day  of  May  1825,  all  contracts,  bargains, 
sales  and  dealings  which  shall  be  made  or  had  within 
any  part  of  the  United  Kingdom  of  Great  Britain  and 
Ireland,  for  any  goods,  wares,  merchandise,  or  other  thing 
to  be  sold,  delivered,  done  or  agreed  for  hy  measure, 
where  no  special  agreement  shall  be  made  to  the  contrary, 
shall  be  deemed,  taken  and  construed  to  be  made  and 
had  according  to  the  standard  measures  ascertained  by 
this  Act ;  and  in  all  cases  where  any  special  agreement 
shall  be  made  with  reference  to  any  measure  established 
by  local  custom,  the  ratio  or  proportion  which  every  such 
local  measure  shall  bear  to  any  of  the  said  standard  mea- 
sures shall  he  expressed,  declared  and  specified  in  such 
agreement,  or  otherwise  such  agreement  shall  be  null  and 
void :  and  it  is  then  enacted  that(f/)  the  several  statutes, 
ordinances,  and  acts  and  parts  of  the  several  statutes, 
ordinances  and  acts  thereinafter  mentioned  and  specified, 
so  far  as  the  same  relate  to  the  ascertaining  or  establish- 
ing any  standards  of  measures,  or  to  the  establishing  or 

(6)  S.  2. 
(c)  S.  15. 

id)   S.  23,  sec  6  Geo.  IV.  c.  12. 
(*327) 


OF  THE  ESTATE.  gg-y 

(*)recognizing  certain  differences  between  measures  of 
the  same  denomination,  shall  from  and  after  the  1st  day  of 
May  1825,  be  repealed;  and  the  enumeration  includes 
the  statutes  or  ordinances  before  mentioned  in  this  sec- 
tion, which  are  therefore  repealed. 

This  Act  determines  what  now  in  law  is  the  superficial 
quantity  of  an  acre  of  land.  A  question  will  no  doubt 
arise,  whether  s.  15^  applies  to  contracts  for  land  under 
the  words  "  or  other  thing  to  be  sold,"  or  whether  those 
words  are  not  to  be  construed  ejusdem  generis  with  the 
preceding  words,  which  are  "  goods,  wares,  merchandise." 
At  all  events,  the  section  applies  only  to  sales  hy  measure. 
But  wherever  a  purchaser  is  under  a  contract  entitled  to 
statute  acres,  the  measure  will  be  regulated  by  this  Act. 

(*328) 


[  398  ] 

(*)CHAPTER  Vll. 

OF    THE    TITLE    WHICH    A    PURCHASER    MAY    REQUIRE. 


I.  A  PURCHASER  before  the  late  Act  of  3  &  4  W.  4, 
c.  27,  had  a  right  to  require  a  title  commencing  at  least 
sixty  years  previously  to  the  time  of  his  purchase ;  be- 
cause the  old  statute  of  limitations(«)(I)  could  not  in 
a  shorter  period  confer  a  title.  In  Paine  v.  Meller(6), 
Lord  Eldon  was  of  opinion,  that  an  abstract  not  going 
farther  back  than  forty-three  years,  was  a  serious  objec- 
tion to  the  title(205). 

(a)   32  Hen.  VIII.  c.  2  ;  21  Jac.  I.  c.  1.     Vide  post;    and  see  Barn- 
well V.  Harris,  1  Taunt.  430. 

(6)  6  Ves.  jun.  349.     See  Robinson  v.  Elliott,  1  Russ.  599. 


(I)  The  Courts  however  were  so  anxious  to  protect  a  long  posses- 
sion, that  no  plaintiff  was  entitled  to  so  little  favor  as  a  plaintiff  in  a  writ 
of  right.  See  Charlwood  v.  Morgan,  Baylis  v.  Manning,  1  New  Rep. 
64,  233  ;  Maidment  v.  Jukes,  2  New.  Rep.  429. 

(205)  In  Sergeant  V.  Ballard,  9  Pick.  261,  the  plaintiffs  claimed  a 
right  of  dockage  upon  the  land  of  the  defendant.  It  was  claimed  as  a 
praedial  service  due  from  the  estate  of  the  defendant  to  the  estate  of  the 
plaintiffs  ;  and  said  the  court,  Putnam  J.  "  it  is  analogous  to  the  r%ht  of 
watering  cattle,  conducting  water,  a  right  of  way,  of  pasturage,  of  digging 
for  metals,  &c.  and  a  great  many  other  rights  and  easements,  which  may 
be  acquired  by  grant,  and  by  other  means  in  the  land  of  others."  Tire 
jury  at  the  trial  were  instructed,  that  in  order  to  establish  the  plaintiff's 
claim,  it  was  not  necessary  for  them  to  produce  any  deed,  or  to  prove  that 
any  ever  existed  ;  the  rule  being,  "  that  twenty  years'  occupation  alone 
is  sufficient  to  ground  a  presumption  that  the  occupation  began  in  virtue 
of  some  compact  between  the  parties ;  but  it  is  to  be  applied  only  to 
cases  where  the  legal  qualities  of  such  right  are  proved  to  exist.  One 
is,  that  the  occupation  must  be  uninterrupted  by  the  owner  of  the  land ; 
another  is,  that  the  occupation  must  be  really  adverse,  and  not  by  anv 

(*329) 


OF  THE  TITLE  WHICH  A  PURCHASER    MAY  REQUIRE.        qOQ 

Even  sixty  years  were  not  sometimes  sufficient.     For 
instance,   if  it  might   reasonably  be  presumed   from   the 

permission,  license,  or  indulgence  of  the  owner."  One  ground  for  a 
new  trial  assigned  was  because  the  instructions  were  erroneous ;  but 
the  court  considered  the  instructions  of  the  chief  Justice  upon  the  point 
of  occupation,  very  proper.  Putnam,  J.  observed,  "  We  cannot  sup- 
pose (as  was  contended  for  the  plaintiffs),  that  the  mere  use  of  the  ease- 
ment for  twenty  years  is  conclusive  of  the  right ;  nor  do  we  think  that 
was  the  meaning  of  Story,  J.  in  Tyler  v.  Vvilkinson,  4  Mason,  402, — 
His  words  were  'by  our  laws,  upon  principles  of  public  convenience, 
the  term  of  twenty  years  of  exclusive  uninterrupted  enjoyment  has  been 
held  a  conclusive  presumption  of  a  grant  of  right.'  He  could  not  have 
intended  an  enjoyment  which  had  been  by  the  favor  and  at  the  will  of 
the  owner  for  twenty  years.  The  chief  Justice  further  instructed  the  ju- 
ry, '  that  the  plaintiffs  could  not  join  the  period  of  the  occupation  of  Gov- 
ernor Hutchinson,  before  the  revolution,  to  their  own  subsequeiH;  occu- 
pation, because  the  occupation  was  interrupted  from  1774  to  1780.' 
Such  an  interruption  would  be  what  the  civilians  call  a  usurpation ; 
Ayl.  Civ.  Law.  321,  324  ;  which  is  a  discontinuance  given  to  prescrip- 
tion, in  point  of  time  and  possession,  '  for  upon  a  commencement  of  usur- 
pation, prescription  is  destroyed  or  annihilated,  and  must  begin  again  ;' 
which  usurpation  may  be  by  "  an  extra  judicial  denunciation  or  claim 
of  right,"  and  especially  "  by  a  contestation  of  suit." 

But  the  time  which  an  ancestor  possessed  may  be  extended  and  al- 
lowed to  his  heirs ;  and  the  same  rule  applies  to  buyers  and  sellers. 
"  Inter  venditorem  quoque  et  emptorem  conjungi  iempora.''  Just,  instin. 
lib.  2.  tit.  6.  s.  8.  All  that  would  be  required  by  the  possessor  would 
be,  evidence  that  the  possession  had  been  legally  continued  from  one 
owner  to  another.  Jt  was  therefore  a  correct  instruction  which  was 
given  by  the  chief  Justice,  that  the  plaintiffs  could  not  lap  on  Governor 
Hutchinson's  time  to  Parson's,  because  of  the  interruption  from  1774  to 
1780.  But  the  plaintiffs  might  avail  themselves  of  the  continued  pos- 
session of  their  ancestors.  And  if  Hutchinson  acquired  the  right  be- 
fore he  went  away  in  1774,  it  would  have  passed  with  the  estate  in  vir- 
tue of  the  confiscation  and  the  deed  of  the  commonwealth  to  Sergeant 
and  Parsons.  But  the  difficulty  of  the  case  on  the  part  of  the  plaintiffs, 
is  as  to  the  character  of  the  occupation,  whether  it  were  adverse,  or 
by  favor.  The  plaintiffs  have  the  burden  of  proof.  If  they  leave  it 
doubtful  they  are  not  to  prevail.  They  must  not  only  prove  the  using 
for  twenty  years,  which  is  here  the  '  tempus  longuni,'  but  that  it  was  con- 
tinned,  uninterrupted  and  adverse,  that  is,  under  a  claim  of  right ;  the 
owner  acquiescing.      Dedications  of  ways  do  not   always   rest  upon 


4Q0  OF  THE  TITLE  WHICH 

contents  of  the  abstract,  that  estates-tail  were  subsisting, 
the  purchaser  might  demand  the  production  of  the  prior 
title.  The  statutes  of  limitation  could  not  in  such  case 
be  relied  on ;  remainder-men  having  had  distinct  and 
successive  rights,  upon  which  at  least  the  statute  of 
James  could  only  begin  to  operate  as  they  fell  into  pos- 
session. It  might  have  been  thought  in  the  common  case 
of  a  man  claiming  by  descent,  a  reversion  expectant  upon 
particular  estates  created  by  his  ancestor's  will,  that  a 
writ  of  right  would  not  lie  after  sixty  years  from  his 
ancestor's  death,  although  the  particular  estates  had  but 
(*)recently  determined.     But  however  this  might  be,  the 

length  of  possession,  for  in  3  Bing.  R.  447,  the  question  left  to  the  jury 
was  whether  the  thorough-fare  had  been  used  with  the  consent  of  the 
owner  of  the  soil,  and  not  for  what  length  of  time.  A  parol  dedication 
is  good,  and  generally  the  only  one  made  ;  and  although  there  is  no 
grantee  to  take,  it  vests  in  the  public,  and  is  different  from  ordinary 
grants,  and  is  construed  upon  principles  to  suit  the  nature  of  the  case  ; 
they  are  similar  to  the  case  where  a  man  lays  out  a  street  or  highway 
over  his  own  land,  where  there  is  no  grantee  of  the  easement,  yet  it  takes 
effect  as  a  grant  to  the  public  use,  who  have  the  right  of  passage  through, 
not  the  absolute  property.  White  v.  The  City  of  Cincinnati,  6  Peter's 
R.  432.  So,  in  the  case  of  Wyman  v.  The  Mayor  of  N.  Y.  11  Wend. 
R.  486,  where  a  vendor  sold  lots  according  to  the  city  map  on  which  his 
estate  was  laid  down  as  divided  into  blocks,  streets,  &c.  held :  that  he 
impliedly  granted  the  right  or  privilege  to  the  purchaser  of  having  such 
streets,  &c. : — and  where  the  conveyance  itself  bounds  the  lot  upon  a 
a  street  of  a  particular  width,  or  as  lying  within  a  certain  distance  from 
the  street,  the  dimensions  and  locality  of  which  are  described  with  suffi- 
cient certainty  in  the  deed,  and  the  grantor  is  the  owner  of  the  land  up- 
on which  the  supposed  street  is  located,  the  grant  of  the  privilege  of 
such  a  street  may  well  be  implied.  A  similar  implication  arises  when 
a  conveyance  is  made  with  reference  to  a  map  or  town  plot  on  which 
the  streets  are  laid  down.  In  the  case  of  Lewis  street,  2  "Wend.  R.  472, 
"the  principle  was  established,  that  in  the  city  of  New- York  the  purcha- 
sers of  lots  bounded  upon  streets  not  yet  opened,  are  not  subject  to  any 
assessment  for  opening  such  streets,  to  pay  the  owner  for  the  value  of 
the  land,  the  presumption  being  that  an  enhanced  price  was  paid  for  the 
lots,  in  consideration  of  being  upon  u  street  or  streets.     S.  P.  8  Wend. 

85. 
(*330) 


A  PURCHASER  MAY  REQUIRE. 


401 


objection  still  remained,  for  an  ejectment  might  have 
been  brought  at  any  time  within  twenty  years  after  the 
estate  fell  into  possession. 

So,  if  an  abstract  begin  with  a  conveyance  by  a  person 
who  is  stated  to  be  heir  at  law  of  any  person,  the  pur- 
chaser may  require  proof  of  the  ancestor's  intestacy. 

To  pursue  this  point  is,  in  this  place,  impracticable,  so 
numerous  are  the  cases  in  which  counsel  are  comj^elied 
to  require  the  production  of  the  prior  title. 

But  the  law  is  altogether  altered  by  the  3  &  4  WilL  4. 
c.  27(c),  which  limits  the  general  time  to  recover  to 
twenty  years,  with  a  saving  of  ten  years  for  persons  un- 
der disability,  but  not  to  exceed  in  any  case  forty  years, 
although  the  ten  years  are  not  expired.  The  Act  allows 
no  further  time  for  successive  disabilities,  and  makes  the 
bar  of  the  tenant,  in  fact,  extend  to  all  whom  he  might 
have  barred.  This  will  ultimately  tend  to  shorten  ab- 
stracts considerably,  and  in  the  result  forty  years  will  pro- 
bably be  considered  the  proper  period  instead  of  sixty  for 
an  abstract  to  extend  over,  but  still  cases  must  frequently 
arise  where  it  will  be  necessary  to  call  for  an  earlier  title. 
As  fines  are  abolished,  a  short  bar,  as  formerly,  cannot  now 
be  made. 

Of  course  a  purchaser  may,  after  notice  of  a  defect  in 
the  title,  by  his  conduct  wave  the  objection ;  but  Lord 
Eldon  has  determined,  that  where  an  abstract  is  laid 
before  counsel,  who  approves  the  title,  his  approbation  is 
not  to  be  taken  as  against  the  person  consulting  him,  as 
a  waver  of  all  reasonable  objections.  The  Court  cannot 
compel  a  specific  performance  upon  the  ground  of  an 
opinion  which  it  may  think  wrong.  The  purchaser  may 
either  take  an  opinion  from  some  other  counsel,  or  the 
(*)one  first  consulted  may  correct  his  error  in  a  further 

(c)   See  posi,  for  a  full  abstract  of  the  Act. 

vol..  r.  51  (*331) 


AQ2  OF  THE  TITLE  WHICH 

opinion(^).     This,  it  may  be  observed,  was  always  the 
understanding  of  the  Profession. 

The  right  to  a  good  title  is  a  right  not  growing  out 
of  the  agreement  between  the  parties,  but  which  is  given 
by  law.  A  purchaser,  therefore,  may  wave  his  right,  by 
concluding  an  agreement  after  he  has  full  notice  that  he 
is  not  to  expect  a  title  beyond  a  limited  period.  That 
may  be  matter  of  notice  and  not  of  contract(e).  And  the 
vendor  may  of  course  stipulate  that  the  purchaser  shall 
accept  the  title  such  as  it  is(jr). 

II.  Under  this  head  we  must  consider  the  much  agi- 
tated point,  whether  a  purchaser  of  a  leasehold  estate 
can  insist  upon  the  production  of  the  lessor's  title. 

The  general  practice  of  the  Profession  is  to  call  for  an 
abstract  of  the  title,  but  a  lessee  is  not  often  able  to  com- 
ply with  the  demand.  At  the  time  the  lease  is  granted, 
the  title  is  rarely  investigated,  or  even  thought  of;  and 
a  lessor  cannot  be  advised  voluntarily  to  submit  his  title 
to  the  examination  of  strangers.  As  my  Lord  Eldon 
remarked(^),  the  Newcastle  case  is  a  good  lesson  upon 
this  subject  of  production.  The  corporation  produced 
their  charters  to  satisfy  curiosity  ;  some  persons  got  hold 
of  them,  and  the  consequence  was,  the  corporation  lost 
7,000/.  a  year. 

The  numerous  cases  in  the  books  where  lessees,  and 
persons  claiming  under  them,  have  been  evicted  on  ac- 
count of  defects  in  the  titles  of  their  lessors,  strongly 
evince  the  danger  of  taking  a  lease  without  investigating 
the  landlord's  title.  No  title  can  be  depended  upon, 
(*)however  long  the  estate  may  have  been  in  the  same 

(d)  Deverell  v.  Lord  Bolton,  18  Ves.  505. 

(e)  See  3  Mer.  64. 

(/)  Wilmot  V.  Wilkinson,  6  Bam.  &  Cress.  506. 

(g)  8  Ves.  jun.  141. 

(*332) 


A  PURCHASER  MAY  REQUIRE.  ^Qg 

family.  There  may  be  a  defect  in  a  settlement,  or  the 
person  in  possession  may  have  a  partial  estate  only,  with 
a  power  of  leasing.  All  the  leases  of  the  Pulteney  estate 
were  set  aside  on  account  of  a  power  of  leasing  not 
having  been  duly  pursued  :  nor  is  this  the  only  estate  of 
which  the  leases  have  been  vacated.  Besides,  without 
an  abstract  of  the  title,  a  purchaser  cannot  even  ascertain 
that  the  lessor  had  not  mortgaged  the  estate  previously 
to  granting  the  lease,  in  which  case  (as  against  the  mort- 
gagee) the  lessee,  and  consequently  any  purchaser  from 
him,  would  be  a  mere  tenant  at  will(A) ;  and  his  only 
remedy  would  be  either  to  redeem  the  mortgage,  or  to 
bring  an  action  on  the  lessor's  covenant  for  quiet  enjoy- 
ment. 

A  lessee  is  a  purchaser  pro  tcmto,  and  it  should  therefore 
seem  that  he  is  not  only  entitled  to  call  upon  the  lessor 
for  an  inspection  of  his  title,  but  would  not  meet  with 
any  favor  if  he  neglected  to  do  so  ;  for  no  one's  misfor- 
tune is  so  much  slighted  by  the  courts  as  his,  who  buys 
a  thing  in  the  realty,  and  does  not  look  into  the  title(z). 
In  Keech  v.  HallCjJ,  Lord  Mansfield  appears  to  have 
taken  it  for  granted,  that  a  lessee  has  a  right  to  examine 
the  title  deeds.  The  case  of  Gwillim  v.  Stone(A:),  seems 
to  lean  the  other  way,  although  there,  the  plaintiff  ap- 
pears to  have  mistaken  his  remedy,  and  the  decision  in 
effect  only  was,  that  a  man  entering  under  an  agreement 
for  a  lease,  before  the  lease  is  granted,  cannot  call  upon 
the  other  party  to  reimburse  him  his  loss  in  case  a  title 
cannot  be  made :  although  certainly  Mr.  Justice  Law- 
rence seems  to  have  thought,  that  the  mere  agreement  to 

(/O  Keech  v.  Hall,  Dougl.  21. 

(i)  See  Roswell  v.  Vaughan,  Cro.  Jac.  196  ;  and  Lysncy  v.  Selby, 
2  Lord  Raym.  1118. 

(j)  Dougl.  21  ;  and  sec  Waring  u.  Mackreth,  Forr.  Ex.  Rep.  129  ; 
11  Ves.  jun.  343. 

ik)   3  Taunt.  433. 


404  0^  THE  TITLE  WHICH 

(*)grant  the  lease  did  not  warrant  an  implied  agreement  to 
make  a  good  title,  or  to  deliver  an  abstract. 

In  a  later  case(/)  Gibbs,  C.  J.  thought  that  at  nisiprius, 
that  the  defendant  was  not  bound  to  deliver  an  abstract 
under  a  bare  agreement  to  grant  a  lease  for  twenty-one 
years ;  and  Mr.  Justice  Heath,  after  instancing  the  case 
of  leases  for  three  lives,  granted  some  years  since  in 
Devonshire^  by  a  Duchess  of  Bolton,  who  was  mere 
tenant  for  life,  but  assumed  to  have  a  power  of  leasing, 
and  received  fines  to  the  amount  of  29,000/.  observed, 
that  nevertheless  it  had  never  yet  been  heard  of,  that  a 
tenant  for  life  was  asked  to  show  his  title  to  lease.  The 
instance  quoted  shows  the  strong  necessity  of  the  title 
being  produced ;  and  there  isaio  instance  in  which  a  man 
acting  under  good  advice,  accepts  a  title  from  a  tenant  for 
life,  without  the  production  of  the  settlement  under  which 
he  claims.  However,  in  this  case,  the  Court  considered 
that  the  cause  originated  in  a  dispute  between  the  two 
attornies,  and  the  Judges  expressed  their  desire  not  to 
decide  the  point,  without  affording  an  opportunity  for 
a  review  of  their  judgment.  But  in  the  later  case  of 
Roper  V.  Coombes(??i),  where  the  agreement  was  to  grant 
a  lease  for  a  large  premium,  the  contract  was  considered 
to  be  for  the  sale  of  a  lease,  and  as  the  intended  lessor 
had  no  right  to  grant  it,  the  other  party  was  allowed  to 
recover  back  his  deposit. 

In  the  last  equity  case  on  this  subject,  where  the 
agreement  was  made  to  take  a  lease  for  twenty-one  years 
at  rack-rent,  the  Master  of  the  Rolls  decided,  that  the 
intended  lessor,  loho  was  plaintiff',  could  not  enforce  a 
specific  performance,  without  producing  the  original 
lessor's     tit\e(n).       But     it    still     remains     undecided, 

(/)  Temple  v.  Brown,  6  Taunt.  60. 
(m)   6  Barn.  &  Cress.  634. 

(n)  Fildes  v.  Hooker,  2  Mer.  424 ;  Lord   Ossulston  v.  Deverell,  26 
May  1818,  MS. 
(*333) 


A  PURCHASER  MAY  REQUIRE.  j^q^ 

(*)vvhether  a  lessee  can,  as  plaintiff,  call  for  the  original 
lessor's  title. 

The  argument  generally  urged  against  a  purchaser's 
right  to  call  for  the  lessor's  title  is,  that  a  lessee  is  seldom 
able  to  produce  the  title  ;  and,  therefore,  on  the  ground  of 
convenience,  a  purchaser  must  be  presumed  to  know  this 
circumstance,  and  to  buy,  subject  to  an  implied  condition, 
not  to  call  for  the  freehold  title.  But  the  answer  to  this 
is,  that  the  lessor's  title  is  now  generally  required ;  and 
where  the  vendor  cannot  produce  the  title,  it  is  usual  to 
state  the  fact  in  the  particular  or  agreement.  Therefore, 
where  that  statement  is  omitted,  it  is  fair  to  presume  that 
the  vendor  is  in  possession  of  the  title.  There  can  be  no 
inconvenience  in  establishing  the  purchaser's  right  to 
call  for  the  freehold  title  ;  for  the  vendor  has  it  in  his 
power  to  prevent  the  claim  by  an  express  stipulation. 

Of  course,  if  a  vendor  of  a  leasehold  estate  be  unable 
to  procure  the  lessor's  title,  equity  cannot  assist  the  pur- 
chasor(o),  unless  he  will  dispense  with  the  production  of 
the  title  to  the  freehold. 

The  question  under  consideration  arose  in  a  recent 
case  in  the  Court  of  Chancery  ;  and  Lord  Eldon  avoided 
deciding  the  abstract  point,  although  he  certainly  appears 
to  have  thought  that  the  better  rule  would  be,  that  the 
purchaser  is,  in  the  absence  of  an  express  stipulation  to 
the  contrary,  entitled  to  the  production  of  the  lessor's 
title.  He  intimated,  however,  that  if  ever  it  should  be 
his  duty  to  decide  a  question  so  important,  he  would  call 
in  the  Judges  to  his  assistance. 

The  case  before  Lord  Eldon  has  decided  that^  the 
vendor  cannot  demand  a  specific  performance  if  the  pur- 
chaser can  show  that  the  title  to  the  freehold  is  not  good, 
or  that  there  are  any  incumbrances  on  it ;  nor  will  equity 
(*)afford  its  aid  against  the  purchaser,  where  the  nature 

(o)    Vide  supra,  p.  208. 

(*334) (*33o) 


^Qg  OF  THE  TITLE  WHICH 

of  the  leasehold  title  is  misrepresented.  The  facts  were 
these :  the  interest  was  described  as  fifty  years,  the  resi- 
due of  a  term  free  from  incumbrances,  whereas  it  appear- 
ed that  there  were  only  sixteen  years  to  come  of  the  old 
lease,  granted  by  Sir  Richard  Grosvenor  in  1722,  and  the 
residue  of  the  fifty  years  was  granted  by  the  trustees  of 
Lord  Grosvenor  in  1791,  as  a  reversionary  term  for 
thirty-four  years.  It  appeared,  that  in  1785,  the  estate 
in  question  was  charged  with  jointures,  mortgages,  &c. 
Lord  Eldon  held,  that  in  these  cases  a  purchaser  should 
at  least  know  accurately  what  he  is  buying ;  that  in  the 
case  before  him,  the  title  produced  did  not  correspond 
with  that  contracted  for ;  and  that  there  was  a  wide  dif- 
ference between  the  residue  of  a  lease  that  has  existed 
for  a  century  with  possession  under  it,  and  a  small  residue 
of  an  old  term,  and  a  reversionary  lease  granted  by  per- 
sons whose  title  from  the  first  lessor  is  not  deduced.  He 
also  thought  that  he  was  bound  to  look  at  the  incumbran- 
ces,  and  therefore  dismissed  the  bill,  but  without  costs(p). 
But  when  it  is  stated  that  the  property  is  held  under  two 
leases  at  one  rent  for  a  stated  term,  it  must  be  understood 
that  the  leases  are  consecutive  ones(^). 

The  general  point  was  decided  in  favor  of  the  pur- 
chaser's right  in  the  case  of  Purvis  v.  Rayer(r)  in  the 
Exchequer.  An  agreement  was  entered  into  on  the 
(*)15th  May  1819,  between  John  Goldsborough  Raven- 
shaw  (as   the   agent   of  Purvis)    of  the  one    part,    and 

(p)  Whiter.  Foljambe,  11  Ves.  jun.  337;  Deverell  v.  Lord  Bolton, 
18  Ves.  505  ;  and  see  Radcliff  v.  Warrington,  12  Ves.  jun.  326  ;  Lady 
Saltotn  V.  Philips,  sittings  after  T.  T.  1813,  cor.  Lord  Ellenborough, 
where  a  purchaser  recovered  his  deposit,  because  the  seller  claimed  his 
lease  subject  to  Lord  Grosvenor's  incumbrances,  and  had  stated  that 
the  lease  was  only  subject  to  the  ground-rent,  although  he  had  not 
undertaken  to  produce  the  landlord's  title.     See  9  Price,  515. 

(q)   Sprattr.  Jeftery,  10  Barn.  &  Cress.  249. 

{r)   28  July  1821,  MS.;   S.  C.  9  Price,  488. 

(*336) 


A  PURCHASER  MAY  REQUIRE. 


407 


William  Rayer  of  the  other  part ;  whereby  Ravenshavv 
agreed  to  sell,  and  Rayer  agreed  to  purchase  a  house  in 
Bath,  held  for  the  remainder  of  a  term  of  years  under 
the  corporation  of  Bath  and  the  late  Richard  Atwood,  at 
the  sum  of  1,500/. ;  an  abstract  to  be  made  and  deliver- 
ed by  Purvis,  and  the  assignment  to  be  at  the  expense 
of  Rayer.  The  purchase-money  to  be  paid  on  or  before 
Midsummer,  when  the  deeds  were  to  be  signed.  The 
ground-rent  and  all  outgoings  to  Midsummer  to  be  paid 
by  Purvis,  from  whence  the  same  were  to  be  paid  by 
Rayer.  The  bill  was  filed  by  the  seller,  and  the  title 
was  referred  to  the  Master,  who  reported  that  the  plaintiff 
could  not  make  a  good  title  to  the  said  leasehold  pre- 
mises. The  report  was  grounded  on  the  non-production 
of  the  lessor's  title.  The  plaintiff  excepted  to  the  report. 
The  Chief  Baron  overruled  the  exception.  His  Lordship 
observed  that  the  question  was,  whether,  when  a  man 
sells  a  leasehold  estate,  he  could  compel  the  purchaser  to 
take  it  without  showing  him  his  title.  White  v.  Foljambe 
was  the  first  case  on  this  point.  There  was  no  case  that 
went  the  length  of  showing  that  a  lessor  is  not  bound  to 
show  his  title.  This  was  a  lease  from  a  corporation  ;  and 
the  general  rule  is,  that  where  a  vendor  offers  any  thing 
for  sale,  the  vendee  is  entitled  to  have  the  thing  he  buys 
with  a  moral  certainty  that  he  has  the  thing  he  buys.  If 
a  man  sell  an  inheritance,  he  must  show  a  title  to  the 
inheritance  :  so  if  a  life  estate.  Then  what  is  the  differ- 
ence where  a  lease  is  sold  ?  It  is  said,  however,  that  this 
is  an  anomalous  case ;  but  the  law  has  not  said  so,  nor 
has  it  been  so  considered  in  any  of  the  decided  cases. 
Then  it  is  objected,  that  a  lessor  has  not  the  means  of 
compelling  the  inspection  of  his  lessor's  title  ;  that  is  true, 
but  furnishes  no  ground  for  an  exception.  A  lessee  may 
(*)insist^  on  looking  into  his  lessor's  title,  or  that  he  should 
produce  it ;  but  if  he  omits  to  do 'so,  is  that  any  reason 
why  the  vendee  of  a  lease  should  be  deprived  of  those 

(*337) 


408 


OF  THE  TITLE  WHICH 


advantao;es  ?  Another  course  is,  to  state  in  the  adver- 
tisement  that  you  cannot  show  the  title.  Therefore, 
though  after  the  lease  is  granted  the  lessee  cannot  compel 
the  production  of  his  lessor's  title,  there  is  no  reason  why 
the  vendee  should  be  put  to  any  risk.  Then  is  there 
a  good  title  here;  the  lease  is  made  in  1774;  does  the 
length  of  time  make  the  lease  good  ?  Suppose  it  had 
been  made  by  a  tenant  for  life  ;  a  tenant  for  life  might 
live  for  forty-five  years  ;  forty-five  years  possession  would 
not  be  good  evidence  of  a  title  to  the  inheritance ;  but 
then  it  is  said,  this  was  a  lease  by  a  corporation.  His 
Lordship  was  of  opinion  that  there  might  be  circumstances 
which  might  make  an  alteration  ;  but  here  there  was  no 
act  of  ownership  prior  to  1774,  no  prior  leases.  A  tenant 
for  life  might  have  conveyed  in  fee  to  a  corporation,  but 
on  the  death  of  the  tenant  for  life,  the  estate  would  cease. 
This  case,  therefore,  did  not  differ  from  the  case  of  a  lease 
from  an  individual. 

If  a  purchaser  of  a  leasehold  estate  had  notice,  at  the 
time  he  entered  into  the  contract  for  purchase,  of  the 
vendor's  inability  to  produce  the  lessor's  title,  he  would 
not  afterwards  be  allowed  to  insist  on  its  production. 
Wherever,  therefore,  a  vendor  of  a  leasehold  estate  has 
not  an  abstract  of  the  lessor's  title,  this  circumstance 
should  be  mentioned  in  the  particulars  of  sale,  if  sold  by 
auction  ;  or  in  the  agreement,  if  sold  by  private  contract. 
And  if  the  purchaser  agree  to  accept  a  proper  assign- 
ment, without  requiring  the  lessor's  title,  he  will  at  law 
be  compelled  to  pay  the  price,  although  the  lessor's  title 
prove  to  be  bad(5).  And  a  purchaser  of  an  estate 
(*)held  under  a  bishop's  lease,  cannot  call  for  the  lessor's 

title(0- 

It  seems  formerly  to  have  been  thought,  that  a  plaintiff 

(s)  Spratt  V.  Jeffery,  10  J5arn.  Cress.  249. 
{t)  Fane  v.  Spencer,  2  Mer.  430. 
(*338) 


A  PURt'IIASER  MAY  REQUlRtl  aqq 

in  an  ejectment  ibr  a  leasehold  estate,  could  not  recover 
unless  the  original  lease  and  all  the  mesne  assignments 
were  proved  ;  but  this  rule  has  been  relaxed,  and  where 
the  possession  had  been  uniform,  the  jury  will  be  recom- 
mended to  presume  any  old  assignnients  which  have  been 
]ost(w).  It  cannot,  however,  be  laid  dovAn  as  a  general 
rule,  that  a  purchaser  of  a  leasehold  estate  can  safely 
accept  the  title  where  any  of  the  mesne  assignments  have 
been  lost,  although  he  might  be  able  to  recover  in  eject- 
ment, if  he  actually  did  purchase.  Every  case  of  this 
nature  must  depend  upon  its  own  particular  circumstan- 
ces(.r). 

If  the  title  deeds  are  lost,  the  seller  must  furnish  the 
purchaser  with  the  means  of  showing  what  were  the  con- 
tents of  the  deeds,  and  of  proving  that  they  were  duly  ex- 
ecuted, even  where  the  deeds  are  accidentally  destroyed 
by  fire  after  the  contract  is  made(j/). 

With  respect  to  the  title  to  renewable  leaseholds,  great 
difficulty  constantly  occurs.  All  public  bodies  who  grant 
renewable  leases,  require  the  old  lease  to  be  given  up  be- 
fore they  will  grant  a  new  one  ;  and  when  they  once  obtain 
possession  of  a  surrendered  lease,  they  w'ill  not  part  with  it, 
or  permit  a  copy  of  it  to  be  taken.  When  the  lessee  sells, 
he  produces  an  abstract  of  the  subsisting  lease  and  subse- 
quent instruments.  Now  this  is  a  title  which  it  is  impos- 
sible to  accept,  however  willing  the  purchaser  may  be,  and 
although  he  may  have  waved  calling  for  the  lessor's  title. 
Every  lease  i»  stated  to  be  granted  in  consideration  of  the 
surrender  of  the  former  lease,  and  by  means  of  this  refer- 
ence (*)the  chain  of  title  is  kept  up.  The  reference  in  the 
last  lease  to  the  one  immediately  preceding,  is  notice  of  it 
to  the  purchaser,  and  that  again  is  notice  of  the  one  before 

(«)  Earl  V.  Baxter,  2  Blackst.  1228.     See  11  Ves.  jiin.  350. 

{x)    Vide  post.   Hillary  v.  Waller. 

iy)   Bryant  v.  Bu.sk,  4  Rus3,  ). 

vol..   I.'  52  (*339) 


2^1  Q  OF  THE  TITLE  WHICH 

that,  and  so  on  to  the  first  lease.     And  if  in  any  of  these 

leases  the  lessee  is  described  as  devisee   under  a  will,  or 

there  is  any  thing  to  lead  the  mind   to  a  conclusion  that 

the  lessee  is  not  absolutely  entitled,  the  purchaser  will  be 

liable  to  the   same  equity  as  the  lessee  was  subject  to, 

although  he,  the  purchaser,  had  no  other  knowledge  of 

the  fact,  than  the  mention  in  the  lease  of  the  surrender 

of  the  former  lease,  equity  deeming  that  sufficient  to  lead 

him  to  inquire  into  the  title(2;).     Harsh  as  this  rule  may 

seem,  it  is  quite  consistent  with   the  general   principles  of 

equity,  and  is  imperiously  called  for  in  this  case,  because 

public    bodies  generally  renew  ^vith    the  person    having 

the  legal  estate,  and  seldom  suffer  any  trusts  to  appear  on 

the  lease,  lest  they  should  be  implicated  in  the  execution 

of  them. 

Although  a  purchaser  buys  with  full  notice  that  a  title 
cannot  be  made  without  the  consent  of  a  third  person,  yet 
it  lies  on  the  seller  and  not  on  the  purchaser  to  obtain  the 
consent.  It  cannot  be  inferred  that  the  seller  only  agreed 
to  part  with  his  interest  in  the  estate  as  far  as  he  was  able 
to  do  so(a). 

III.  To  enable  equity  to  enforce  a  specific  performance 
against  a  purchaser,  the  title  to  the  estate  ought,  like 
Ca5sar's  wife,  to  be  free  even  from  suspicion(6) ;  for  it 
would  be  an  extraordinary  proceeding  for  a  court  of  equity 
to  compel  a  purchaser  to  take  an  estate  which  it  cannot 
warrant  to  him(c).  It  hath,  therefore,  become  a  settled 
and  invariable  rule,  that  a  purchaser  shall  not  be  com- 
pelled (*)to  accept  a  doubtful  title(c?)(206)  ;  neither  will 

(s)  Coppin  V.  Fernyhough,  2  Bro.  C.  C.  291. 

(a)  Lloyd  V.  Crispe,  6  Taunt.  249  ;  Mason  v.  Corder,  2  Marsh.  332  ; 
7  Taunt.  9. 

(6)  See  2  Ves.  69. 

(c)  Heath  v.  Heath,  1  Bro.  C.  C.  147. 

(d)  Marlowt).  Smith,  2  P.  Wms.  198;  Mitchel  i-.  Neale,  2  Yes. 

(206)  See  Btithi  v.  O'Hear,  1   Des.  382.     M'Comb  v.  Wright,  4 
(*340) 


A  PURCHASER  MAY  REQUIRE.  Ki  ^ 

he  be  forced  to  take  an  equitable  title(e)  nor  will  a  case 
be  directed  to  the  Judges  as  to  the  title  unless,  the  pur- 
chaser be  willing  that  it  should(yj ;  and  even  if  a  case 
should  be  directed,  and  the  Judges  were  to  certify  in 
favor  of  the  title,  yet  a  specific  performance  would  not 
be  decreed  unless  the  Court  itself  were  satisfied  of  the 
equitable  as  well  as  the  legal  title  of  the  vendor(^).  And 
although  the  Judges  certify  in  favor  of  the  title,  and 
there  is  no  equitable  objection  to  it,  yet  if  the  point  of 
law  is  doubtful,  the  purchaser  may  require  another  case 
to  be  directed,  which  it  seems  will  not  be  sent  back 
to  the  same  court  (A).  If  exceptions  be  taken  to  the 
Master's  report  in  favor  of  the  title,  and  the  Court  think 
the  title  a  doubtful  one,  the  bill  may  upon  further  direc- 
tions be  dismissed  without  either  overruling  or  allowing 
the  exceptions(i). 

And  even  the  house  of  Lords,  sitting  as  a  court  of 
equity  upon  appeal,  will  not  in  all  cases  decide- the  point, 
but  if  they   think  it  a  doubtful  one  will    discharge  the 

679 ;  Shapland  r.  Smith,  1  Bio.  C.  C.  74 ;  Cooper  v.  Denne,  4  Bro. 
C.  C.  80  ;  1  Ves.  jun.  565,  S.  C.  ;  Crewe  t'.  Dicken,  4  Ves.  jun.  97^ 
Rose  V.  Calland,  5  Ves.  jun.  186  ;  Roake  v.  Kidd,  ibid.  647  ;  Wheate 
V.  Hall,  17  Ves.  jun.  80;  Sloper  v.  Fish,  Rolls,  29  July  1813  ;  2  Ves'. 
&  Bea.  145  ;  Jervoise  v.  Duke  of  Northuinberland,  1  Jac.  &  Walk. 
659  ;  Price  r.  Strauge,  6  Madd.  159. 

(e)   Cooper  r.  l^cime,  nbi  sup.  ;  and  see  2  Ves.  juu.  100  ;  and  infra. 

(/)   Roake  v.  Kidd,  ubi  sup. ;  Sharp  v.  Ardcock,  4  Russ.  374. 

ig)  Sheffield  v.  Lord  Mulgrave,  2  Ves.  jun.  526. 

(h)  Trent  v.  Hanning,  10  Ves.  jun.  500. 

(i)  Willcox  V.  Bellaers,  1  Turn.  &  Russ.  491. 

Johns.  Ch.  Rep.  659.  Kelleu  v.  Bradford,  3  Bibb,  317.  But  where  a 
purchaser  proceeds  in  the  treaty  for  a  purchase,  after  he  is  acquainted 
with  the  title,  and  the  nature  of  the  tenure,  and  does  not  object  to  if,  he 
will  be  bound  to  fulfil  his  contract ;  though  a  court  of  equity  might  give 
some  relief,  if,  ultimately,  the  title  should  turn  out  to  be  really  bad. 
Roachw.  Rulhcrford,  4  Des.  126,  135.  See  nho,  nevcrloj  v.  Law- 
son's  heirs,  3  31unf.  317,  338.     Maijo  v.  Purccll,  3  JMunf.  243. 


412 


OF  THE  TITLE  VVIIICII 


purchaser  from  the  contract,  with  costs(Aj).  It  is,  how- 
ever, to  be  regretted  that  such  a  rule  should  have  been 
adopted. 

The  doubt  generally  turns  upon  a  point  of  law,  but 
(*)the  rule  equally  applies  to  other  cases.  Therefore 
where  a  testator,  who  appeared  to  be  seised  of  the  entirety 
of  an  estate,  devised  his  undivided  moiety,  or  half  part  of 
it,  and  all  other  his  shares,  proportions  and  interests  if  any 
therein ;  and  no  evidence  appeared  that  he  had  not  the 
entirety,  and  the  words  were  sufficient,  if  he  had,  to  pass 
it ;  Lord  Eldon  was  of  opinion  that  the  title  was  good  ; 
but  he  was  also  of  opinion  that  this  was  not  a  reasonably 
clear  marketable  title,  with  that  doubt  as  to  the  evidence 
of  it,  which  must  always  create  difficulty  in  parting  with 
it,  and  therefore  he  refused  to  force  the  title  on  a  pur- 
chaser(/). 

So  there  are  many  cases  in  which  a  jury  will  collect  the 
fact  of  legitimacy  from  circumstances,  in  which  it  might 
be  attended  with  so  much  reasonable  doubt,  that  equity 
would  not  compel  a  purchaser  to  take  it  merely  because 
there  was  such  a  verdict.  The  Court  ought  to  weigh, 
whether  the  doubt  is  so  reasonable  and  fair,  that  the 
property  is  left  in  his  hands  not  marketable(m). 

Whether  where  an  action  is  brought  against  a  purchaser 
for  non-performance  of  an  agreement,  a  court  of  law"  will 
act  upon  this  doctrine,  is  doubtful.  In  a  case  before  Lord 
Kenyon  at  nisi  prius(n),  where  an  objection  was  made  to 
the  title,  his  Lordship  said  he  would  not  then  determine 
the  point,  nor  was  it  necessary  to  do  so.  He  thought  it 
a  question  of  some  nicety  ;  but  whether  it  was  or  not,  he 
thought  it  equally  a  defence  to  the  action.     When  a  man 

{k)  Blosse  r.  Claninorris,  3  Bligh,  62. 

(Z)   Stapylton  i'.  Scott,  16  Yes.  jun.  272.     See  1  Yes.  &  Beam.  493  ; 
and  see  and  consider  Hartley  v.  Smith,  1  Buck,  368. 
{m)  Fcr  Lord  Eldon.     See  8  A''es.  jun.  428. 

(m.)  Hartley  r.  Peahall,  Peake's  C.  131  ;  Wilde  r.  Fort,  4  Taunt.  334. 

(*341) 


A  PURCHASER  MAY  REQUIRE.  ^|g 

buys  a  commodity,  he  expects  to  have  a  clear  indisputable 
title,  and  not  such  a  one  as  may  be  questionable,  at  least, 
(*)in  a  court  of  law(l)(207).  No  man  is  obliged  to  buy 
a  lawsuit ;  and  a  verdict  was  given  for  the  purchaser. 
But  in  a  later  case(o),  where  at  law  the  same  argument 
was  urged  on  behalf  of  a  purchaser  who  was  plaintiff, 
Lord  C.  J.  Gibbs  said,  it  was  intimated  that  if  any  doubt 
could  be  cast  on  the  title  of  the  vendor,  the  plaintiff  would 
be  entitled  to  recover  back  his  deposit.  Now,  if  he  had 
gone  into  a  court  of  equity,  the  Chancellor  would  not, 
perhaps,  have  obliged  an  unwilling  purchaser  to  ratify 
the  contract.  But  if  he  come  into  a  court  of  law  to  re- 
cover the  deposit,  on  the  ground  of  an  insufficient  title, 
he  must  abide  by  the  decision  of  that  court,  and  that  is 
the  difficulty  which  the  party  had  brought  upon  himself 
by  coming  into  a  court  of  law.  This  seems  to  be  the 
true  rule. 

In  a  late  case,  where  the  estate  was  sold  without  any 
notice,  that  it  was  recently  allotted  under  an  inclosure 
act,  and  it  appeared  that  the  commissioners  had  not  made 
their  aivard,  and  the  act  contained  no  clause  authorizing 
a  sale  before  the  award  ;  Lord  EUenborough  held,  that 
the  purchaser  was  warranted  in  refusing  the  title(j9).  But 
if  the  purchaser  is  at  the  time  of  the  contract  aware  that 
the  estate  is  in  a  progressive  state  of  inclosure,  and  there 
is  no  ground  to  suppose  that  the  commissioners  will  vary 
the  allotments,  assuming  their  power  to  do  so,  the  pur- 

(o)  Romilly  v.  James,  1  Marsh.  600. 

(p)  Lowndes  v.  Bray,  Sitt.  after  T.  Term,  1810  ;  Cane  v.  Baldwin, 
1  Stark.  65;  Fairer  v.  Billing,  2  Barn.  &  Aid.  171. 


(I)  This  expression  seems  to  refer  to  the  question,  whether  equitable 
objections  to  a  title  are  a  defence  at  law.     Vide  supra,  p.  243. 


(207)  See  Roach  v.  Rutherford,  4  Des.  133. 

(*342) 


414 


OF  THE  TITLE  WHICH 


chaser  will  be  compelled   to  take   t!ie  title  although   the 
award  is  not  executed(9). 

(*)Where  an  act  of  bankruptcy  has  been  committed,  the 
purchaser  cannot  be  compelled  to  take  the  title,  although 
the  vendor  swear  that  he  owes  no  debt  upon  which  a 
commission  can  issue,  and  the  purchaser  cannot  disprove 
the  statement.  The  ground  of  this  determination  was, 
the  impossibility  of  ascertaining  that  there  was  not  such 
a  debt  as  would  support  a  commission(r).  And  upon 
the  same  principle,  a  purchaser  who  has  become  bankrupt 
cannot  compel  a  conveyance  of  the  estate  to  him  ;  because 
he  cannot  satisfy  the  vendor  that  he  will  be  entitled  to 
retain  the  purchase -money  (5). 

.So,  where  an  estate  is  sold  subject  to  a  rent,  which, 
although  not  so  stated,  appears  to  be  only  part  of  a 
larger  rent  charged  on  that  and  other  property,  the  pur- 
chaser will  not  be  bound  to  take  the  title,  although  for 
many  years  the  apportioned  rent  has  been  received (208)  : 
an  apportionment  by  deed  must  be  shown.  It  is  the  duty 
of  the  vendor  to  give  the  purchaser  a  complete  formal 
discharge  of  all  the  further  rent  that  the  house  was  ever 
liable  to.  Although  an  apportionment  may  be  presumed, 
yet,  as  Mr.  Justice  Chambre  observed,  the  question  here 
is  not  what  may  be  presumed,  but  w^hether  a  purchaser 
is  compellable  to  accept  a  purchase,  where  his  title  rests 
only  on  presumption,  which  may  be  rebutted  by  other 
evidence.  And  Lord  Chief  Justice  Mansfield  said,  that 
a  court  of  equity  would  not  decree  a  specific  performance 
in    a  case  like  this,  unless  the  seller  could   procure  the 

(q)  Kingsley  v.  Young,  MS.  ;  S.  C.  17  Ves.  jun.  463,  affirmed  on 
an  appeal  by  Lord  Eldon.     The  act  authorized  a  sale  before  the  award. 

(r)  Lowe  v.  Lush,  14  Ves.  jun.  547 ;  Cann  v.  Cann,  1  Sim.  &  Stu. 
284. 

(s)   Franklin  v.  Lord  Brownlow,  14  Ves,  jun.  660. 


(208)  See  Ten  Brocck  v.  Livingston,  1  Johns.  Ch.  Rep.  357. 
(*343) 


A  PURCHASER  MAY  REQUIRE.  ^|^ 

ground-landlord  to  apportion  the  rent,  by  joining  in  an 
assignment  of  the  lease  ;  in  which  assignment  the  appor- 
tioned rent  should  appear(^). 

But  where  an  apportioned  rent  is  sold,  if  the  rent  is 
(*)an  apportioned  rent,  the  purchaser  cannot  object  that 
he  will  not  have  the  same  remedies  as  if  the  rent  were 
entire  (w). 

So  where  an  estate,  held  under  one  lease,  is  sold  in 
lots,  and  the  fact  is  stated,  and  it  is  stipulated  that  the 
purchaser  of  one  particular  lot  is  to  be  subject  to  the 
whoie  of  the  rent,  the  other  purchasers  cannot  object  to 
the  title,  although  there  is  a  clause  of  re-entry  on  non- 
payment of  the  rent  contained  in  the  lease(.r). 

In  a  case  where  an  estate  was  sold  in  lots,  and  one  of 
the  conditions  stated  that  the  estate  was  subject  to  the 
perpetual  payment  of  120/.  to  the  curate  of  A.,  but  the 
same  and  a  perpetual  annual  payment  to  the  hospital 
of  B.  were  in  future  to  he  dunged  upon  and  paid  by  the 
purchaser  of  lot  1.  only ;  it  was  held,  that  the  purchasers 
of  the  other  lots  were  only  entitled  to  such  an  indemnity 
as  could  be  made  by  the  purchaser  of  lot  1 .  to  the  pur- 
chasers of  the  other  lots(?/). 

Where  the  estate  agreed  to  be  leased  was  comprised 
with  others  in  an  original  lease,  under  which  the  lessor 
had  a  right  to  re-enter  for  breach  of  covenants,  so  that  the 
under-lessee  might  be  evicted  without  any  breach  on  his 
part,  it  was  held,  by  Sir  John  Leach,  Vice-Chancellor,  that 
he  was  not  bound  to  accept  the  title  with  an  indemnity. 
His  Honor  observed,  that  where  a  party  comes  for  a  spe- 
cific performance,  he  desires  the  Court  to  give  the  party 

(/)   Barnwell  v.  Harris,  1  Taunt.  430. 

(«)  So  held  by  the  V.  C.  in  Bliss  v.  Collins,  reported  in  4  Madd. 
229.  See  S.  C.  1  Jac.  &  Walk.  426  ;  Walter  r.  Maunde,  1  Jac.  & 
Walk.  181. 

(t)  Walter  r.  Maunde,  uhi  sup. 

(y)  Cassamajor  v.  Strode,  2  Swanst.  347 ;  1  Wils.  Cha.  Ca.  428. 

(*844) 


416 


OF  THE  TITLE  WHICH 


the  specific  subject.  Now  here  he  could  not  secure  the 
possession  of  the  subject  upon  the  terms  agreed  upon. 
But  he  offers  an  indemnity.  The  lessee  might  be  evicted, 
and  therefore  it  was  compensation  and  not  indemnity  that 
was  offered.  I  will  give  you  the  subject  of  the  contract 
(*)not  with  a  sure  title,  but  with  a  compensation  in  case  of 
eviction.  It  was  not  a  case  for  an  indemnity,  and  the 
Court  could  not  compel  a  performance  with  a  compen- 
sation(2;). 

In  a  late  case(«),  upon  a  purchase,  it  was  agreed,  that 
if  there  should  be  found  any  fee-farm  rents,  or  quit-rents, 
chargeable  on  the  same,  an  allowance  should  be  made  at 
the  rate  of  thirty  years  purchase  on  the  amount  thereof. 
It  appeared  that  the  estate,  with  others  of  great  value, 
was  charged  with  a  perpetual  rent  of  forty  marks,  origi- 
nally reserved  to  the  Crown  ;  but  a  similar  rent  was 
granted  to  trustees  in  fee,  in  the  usual  way,  out  of  a  part 
of  the  estate  not  sold,  of  nearly  ten  times  the  annual  value 
of  the  rent,  as  an  indemnity  to  the  other  estates  against 
the  rent.  It  was  objected,  that  this  charge  prevented  the 
seller  from  making  a  good  title.  It  was  argued,  on  the 
part  of  the  seller,  that  this  was  the  precise  case  in  which 
a  purchaser  would  be  compelled  to  take  a  title  with  an 
indemnity.  Equity  looks  only  to  the  substantial  execu- 
tion of  the  contract ;  and  here  the  rent  was  not,  in  sub- 
stance, a  charge  on  the  land.  It  was  not  like  the  case  of 
a  lease,  where  non-payment  of  the  rent,  or  non-perform- 
ance of  the  covenants,  might  avoid  the  estate  of  the  person 
who  was  required  to  accept  the  indemnity  ;  but  this  was 
the  simple  case  of  a  money  payment,  which  would,  of 
course,  be  accepted  from  the  owner  of  the  estate  exclu- 

(z)  Fildes  r.  Hooker,  3d  April  1818,  MS. ;  3  Madd.  193  ;  Warren 
V.  Richardson,  1  You.  1. 

(a)  Hays  v.  Bailey,  Rolls,  10  Aug.  1813,  MS.  vide  infra.  See 
Cassamajor  v.  Strode,  1  Wils.'  Cha.  Ca.  428. 

(*346) 


A  PURCHASER  MAY  REQUIRE.  ^27 

sivelj  charged  with  it,  by  way  of  indemnity  ;  and  which 
estate  w^ould  always  be  liable  to  answer  any  payment 
made  on  account  of  the  rent  by  the  persons  intended  to 
be  indemnified  against  it.  The  objection,  if  allowed, 
would  affect  half  the  titles  in  the  kingdom.  It  applies 
(*)to  nearly  all  the  estates  which  came  into  the  hands  of 
the  Crown  on  the  dissolution  of  the  monasteries.  Dick- 
enson V.  Dickenson(6)  was  a  stronger  case  ;  for  there  the 
purchaser  was  compelled  to  take  the  title,  although  the 
Judge  was  of  opinion,  that  if,  in  the  event,  the  fund 
should  turn  out  deficient  for  payment  of  the  infant's 
legacies,  he  must  still  have  recourse  to  the  estate  for 
the  deficiency.  The  ground  of  the  decision  must  have 
been,  that  there  was  no  chance  of  the  fund  proving  defi- 
cient. Halsey  v.  Grant(c)  is  a  direct  authority  in  favor 
of  the  seller ;  and  there  the  indemnity  fund  was  not  so 
large  with  reference  to  the  amount  of  the  charge  as  the 
present  ;  and  although  Horniblow  v.  Shirley(f/),  was 
a  case  of  compensation,  and  not  of  indemnity,  yet  it 
appears  that  Lord  Alvanley  said,  that  if  such  an  objection 
was  to  prevail,  a  purchaser  of  a  portion  of  a  large  estate 
would  always  be  at  liberty  to  get  rid  of  a  contract(e). 
In  the  present  case,  the  purchaser  did  not  object  to  the 
estate  being  charged  with  a  fee-farm  rent,  provided  he 
was  paid  its  value.  Here  the  rent  is  charged  only  in 
point  of  form  ;  and  therefore  he  can  require  no  allowance. 
On  the  part  of  the  purchaser,  it  was  argued,  that  the 
clause  relied  upon,  on  the  other  side,  was  evidence  that 
the  purchaser  was  not  to  take  the  estate  subject  to  any 
rent,  unless  it  could  be  sold  to  him  ;  and  the  estate  w^ould 
always  be  liable  to  the  fee-farm  rent,  notwithstanding  the 
indemnity.  The  Master  of  the  Rolls  was  of  opinion, 
that   the   clause    in    the  agreement   referred    to    a    rent 

(6)  3  Bro.  C.  C.  19.  (rf)   13  Ves.  jnn.  8. 

(c)    13  Ves.  jun.  73.  (*)    13  Ves.  jun.  ICi. 

VOL.  I.  63  (*346) 


418 


OF  THE  TITLE  WHICH 


charging  the  estate  sold  only,  and  not  to  a  rent  charging 
it  and  other  estates  ;  and  that  the  Master  was  justified 
in  considering  the  rent  as  an  objection  to  the  title.  As 
to  the  question  of  indemnity,  his  Honor  observed,  that 
(*)Halsey  and  Grant  was  certainly  a  case  of  indemnity  ; 
and  Horniblow  and  Shirley  a  case  of  compensation  ;  but 
he  doubted  whether  the  deed  executed  in  order  to  relieve 
the  estate  in  question,  could  be  considered  such  an  in- 
demnity as  a  purchaser  ought  to  be  compelled  to  accept, 
nor  should  he  decide  whether  in  this  case  any  indemnity 
could  or  ought  to  be  given  by  the  vendor  against  such 
fee-farm  rent.  He  should  leave  that  to  be  decided  when 
the  cause  came  on  to  be  heard  thereafter. 

Upon  an  appeal  to  the  Lord  Chancellor,  he  affirmed  the 
decision  of  Sir  William  Grant,  on  the  ground  that  the  rent 
in  question  did  not  fall  within  the  condition  ;  and  his  Lord- 
ship treated  the  early  cases  as  not  being  authorities,  and 
held  that  a  seller  was  bound  accurately  to  describe  what 
he  was  selling(/X209). 

In  the  case  of  Fildes  v.  Hooker(g),  Sir  John  Leach, 
Vice-Chancellor,  observed,  that  the  utmost  length  of  in- 
demnity was,  that  if  a  good  title  can  be  made  subject  to 
an  incumbrance,  the  purchaser  shall  take  the  title,  with 
a  security  protecting  him  against  the  incumbrance.  He 
did  not  know  that  the  Court  had  gone  so  far,  and  he 
should  not  be  disposed  to  follow  such  a  rule,  because  the 
purchaser  is  entitled  to  an  estate  free  from  incumbrance. 
It  would  be  difficult  to  convince  him  that  such  a  rule  was 
right. 

(/)  M.  T.  1821,  MS. 

(g)  3d  April  1818»  MS.;  3  Madd.  193. 

(209)  Where  there  was  a  contract  for  the  conveyance  of  land,  parcel 
of  a  large  tract,  subject  to  a  quit  rent,  which  had  not  been  demanded 
for  above  60  years,  such  incumbrance,  if  any,  was  held  to  be  no  objec- 
tion to  a  decree  of  specific  performance.  Ten  Broeck  v.  Livingston,  1 
Johns.  Ch.  Rep.  357. 

(*347) 


A  PURCHASER  iMAY  REQUIRE.  ^|g 

It  hath  before  been  observed,  that  a  purchaser  will  not 
be  compelled  to  take  an  equitable  title  ;  but  this  rule  does 
not  extend  to  estates  sold  before  a  Master  under  the 
decree  of  a  court  of  equity.  For  in  this  case,  although 
the  legal  estate  is  outstanding,  and  cannot  be  immediately 
got  in,  yet  if  the  person  seised  of  the  legal  estate  is 
a  party  to  the  suit,  the  Court  will  compel  the  purchaser 
to  accept  the  title,  and  will  decree  generally  that  the 
(*)legal  tenant  shall  convey,  and  that  the  purchaser  shall 
in  the  mean  time  hold  and  enjoy. 

And  even  where  the  legal  estate  is  vested  in  an  infant, 
the  Court  will  compel  the  purchaser  to  complete  his  con- 
tract on  the  usual  decree,  that  the  infant  shall  convey 
when  he  comes  of  age,  unless  he  then  shows  cause  to  the 
contrary ;  and  that  the  purchaser  shall  in  the  mean  time 
hold  and  enjoy. 

Thus  in  a  case(A)  where,  upon  sale  of  an  estate  before 
a  Master,  in  pursuance  of  a  decree  under  Lord  Waltham's 
will,  the  purchaser  objected  to  the  title,  on  the  ground  of 
the  legal  estate  being  in  an  infant ;  Lord  Rosslyn,  without 
the  least  hesitation,  compelled  the  purchaser  to  take  the 
title,  making  his  decree  for  the  infant  to  convey  in  the 
usual  form  ;  because,  as  the  purchaser  bought  under  the 
decree,  he  was  bound  to  accept  such  a  title  as  the  Court 
could  make  him(i).  And  I  learn  that  in  a  case  of  this 
nature,  Lord  Rosslyn  would  not  sanction  an  application 
by  the  purchaser,  at  his  own  expense,  for  an  act  of  par- 
liament to  divest  the  infant  of  the  legal  estate.  Nor,  if 
the  estate  be  copyhold,  will  the  Court  retain  any  part  of 
the  purchase-money  in  order  to  defray  the  expense  of  the 

{h)  Ch.  MS.     See  Chandler  i'.  Beard,  1  Dick.  392. 

(i)  But  note,  a  purchaser  under  a  decree  will  not  be  compelled  to 
take  a  doubtful  title.  See  Marlow  v.  Smith,  2  P.  Wms.  198  ;  Shaw  r. 
Wright,  3  Vcs.  jun.  22  ;  Noel  v.  Weston,  Coop.  13S. 

(*348) 


^20  O^  ^^^  TITLE  WHICH 

fine  that  would  be  payable,  in  case  the  infant  heir  should 
die  before  he  surrendered(A;). 

But  although  a  purchaser  under  a  decree  will  be  com- 
pelled to  accept  a  title  of  this  nature,  yet,  if  he  sell  the 
estate,  the  Court  will  not  enforce  a  specific  performance 
against  the  second  purchaser. 

This  was  also  decided  by  Lord  Rosslyn.  The  pur- 
chaser of  Lord  Waltham's  estate  sold  the  estate  to  a  per- 
son (*)who  objected  to  the  title  upon  the  same  ground  as 
he  had  objected  to  it,  and  refused  to  complete  the  contract. 
The  first  purchaser  very  confidently  filed  a  bill  for  a  spe- 
cific performance,  but  Lord  Rosslyn  dismissed  it ;  because 
such  second  purchaser  did  not  buy  under  the  decree,  and 
therefore  was  not  compellable  to  accept  an  equitable 
title(/). 

But  where  the  estate  is  not  sold  by  the  Court,  although 
the  purchaser  agree  to  go  before  the  Master  upon  a  re- 
ference of  title  in  a  suit  in  Court  for  the  administration 
of  the  estate,  yet  he  is  not  bound  to  take  an  equitable 
t\t\e(m). 

In  a  case  where  a  seller  after  the  contract  died  intestate, 
leaving  an  infant  heir,  who  filed  a  bill  against  the  pur- 
chaser, praying  that  he  might  elect  either  to  complete  or 
abandon  the  contract;  and  the  purchaser  submitted  to 
perform  the  contract,  and  paid  the  purchase-money  into 
court,  the  Maser  of  the  Rolls  refused  to  pay  it  out  with- 
out the  consent  of  the  purchaser  during  the  infancy  of  the 
heir(n). 

In  another  case,  where  after  a  contract  for  sale  the 
seller  died  intestate,  leaving  an  infant  heir,  and  his  widow, 

(k)  Morris  v.  Clarkson,  1  Jac.  &  Walk.  604,  n. ;  3  Swanst.  568. 

(Z)   Powell  r.  Powell,  6  Madd.  53. 

(m)  Cann  i'.  Cann,  1  Sim.  &  Stu.  284. 

(n)  Bullock  V.  Bullock,  1  Jac.  &  Walk.  603. 

(*349) 


A  PURCHASER  MAY  REQUIRE.  a^I 

who  was  his  administratrix,  filed  a  bill  for  a  specific  per- 
formance against  the  purchaser  and  the  heir,  it  was  de- 
creed, and  a  day  given  to  the  heir  to  show  cause(o).  But 
the  objection,  that  the  purchaser  was  not  bound  to  accept 
the  title  in  consequence  of  the  infancy  of  the  heir,  was 
not  taken. 

The  reason  why  a  purchaser  under  a  decree  is  com- 
pelled to  take  an  equitable  title  seems  to  be  this,  that  the 
Court  has  bound  the  right  of  the  party  in  whom  the  legal 
(*)estate  is  vested,  and  will  not  permit  him  to  take  advan- 
tage of  it.  This,  however,  is  not  the  case  w^here  the  le- 
gal estate  is  in  an  infant ;  as  it  makes  part  of  the  decree, 
that  he  shall  convey  when  he  comes  of  age,  unless  he  then 
shows  cause  to  the  contrary. 

In  favor  of  the  rule,  by  which  a  purchaser  under  a 
decree  is  compellable  to  take  an  equitable  title,  it  may 
be  said,  that  it  facilitates  sales  under  the  decrees  of  the 
Court ;  but  the  injustice  of  it  is  too  glaring.  The  decree 
of  a  court  of  equity  acts  in  personam,  and  not  like  a  judg- 
ment at  law,  in  rem ;  and  it  is  possible  that  the  Court 
may  never  be  able  to  compel  the  person  seised  of  the 
legal  estate  to  convey  it  to  the  purchaser. 

But  the  Acts  of  the  1  W.  4,  to  which  we  have  already 
referred(o),  remove  most  of  these  anomalies  by  enabling 
the  Court  to  make  a  good  legal  title.  With  this  view,  as 
we  have  seen,  a  tenant  for  life  may  convey  the  inheri- 
tance ;  an  infant  may  convey  as  if  he  were  an  adult ; 
and  a  committee  may  convey  in  the  place  of  the  lunatic. 

Although  an  estate  is  not  sold  under  a  decree,  and  the 
legal  estate  appears  to  be  outstanding,  and  cannot  be  got 
in,  yet,  if  the  circumstances  of  the  case  are  such  as 
would  induce  a  court  of  law,  under  those  grounds  upon 

(o)  Holland  v.  Hill,  Rolls,  18  Mar.  1818,  MS.  ;  King  r.  Turner,  2 
Sim.  549. 

(o)   Supra,  p.  192. 

(*350) 


^22  OF  THE  TITLE  WHICH 

which  presumptions  are  in  general  raised,  to  presume  a 
reconveyance,  the  purchaser  will  be  compelled  to  take 
the  title(/j).  Reconveyances  have  been  frequently  pre- 
sumed upon  trials  at  law  in  favor  of  justice  ;  but  this 
doctrine  was  never  applied  to  a  contract  between  a  vendor 
(*)and  purchaser,  until  the  case  of  Hillary  v.  Waller,  which 
certainly  has  not  met  with  the  approbation  of  the  bar. 
The  decision  has  occasioned  considerable  difficulties  in 
practice.  As  no  man  can  say  where  exactly  the  line  is 
to  be  drawn,  at  what  period  the  presumption  is  to  arise, 
and  what  circumstances  are  sufficient  to  rebut  it,  each 
party  puts  his  own  construction  on  almost  every  case 
which  arises.  This,  of  course,  leads  to  endless  discussion 
and  expense,  and  the  very  parties  in  whose  favor  the  doc- 
trine was  introduced,  ultimately  feel  how  much  it  would 
have  been  to  their  interest,  that  the  general  rule  of  the 
Profession  had  not  been  relaxed.  This  rule  was,  that 
a  vendor  was  bound  to  get  in  all  outstanding  legal 
estates,  which  were  not  barred  by  the  statutes  of  limita- 
tions. The  certainty  of  the  rule  amply  compensated  for 
any  individual  hardship  which  it  might  sometimes  occa- 
sion. And  now  that  the  time  is  shortened  by  the  late  statute 
of  limitations,  there  is  less  room  than  before  for  presuming 
a  conveyance  of  a  legal  estate  against  a  purchaser(210). 

{p)  Hillary  v.  Waller,  12  Ves.  jun.  239  ;  Emery  v.  Growcock,  ex 
parte  Holman,  post.  ch.  9,  s.  2,  div.  iv  ;  but  see  Goodright  v.  Swym- 
mer,  1  Kenyon,  385  ;  Keene  v.  Deardon,  8  East,  248  ;  Doe  v.  Bright- 
wen,  10  East,  583,  which  show  that  the  circumstance  of  the  equitable 
estate  being  in  the  person  who  claims  the  benefit  of  the  presumption,  is 
not  sufficient  of  itself  to  raise  it ;  and  see  Barnwell  v.  Harris,  1  Taunt. 
430  ;  Doe  v.  Calvert,  5  Taunt.  170 ;  Cooke  v.  Soltau,  2  Sim.  &  Stu. 
154  ;  and  see  10  Barn.  &  Cress.  312  ;  Noel  v.  Bewley,  3  Sim.  103. 

(210)  In  Clark  v.  Redman,  1  Blackf.  R.  379,  where  the  plaintiffs 
gave  to  defendant  their  bond  conditioned  for  making  a  lawful  title  upon 
his  payment  of  the  purchase  money  ;  held,  that  the  obligors  were  bound 
to  make  a  perfect  title  with  a  general  covenant  of  warranty.     The  bond 

(*351) 


A  PURCHASER  MAY  REQUIRE.  AO^ 

We  have  seen,  that  a  purchaser  cannot  be  com}3elled  to 
take  a  doubtful  title  ;  but,  nevertheless,  he  will  not  be 
permitted  to  object  to  a  title  on  account  o£  a  bare  possi- 
bility ;  because  a  court  of  equity,  in  carrying  agreements 
into  execution,  governs  itself  by  a  moral  certainty  :  it 
being  impossible,  in  the  nature  of  things,  there  should  be 
a  mathematical  certainty  of  a  good  title(211). 

Therefore  suggestions  of  old  entails,  or  doubts  what 
issue  persons  have  left,  whether  more  or  fewer,  are  never 
allowed  to  be  objections  of  such  force  as  to  overturn  a  ti- 
tle to  an  estate(9). 

So  where(r),  upon  a  purchase,  it  appeared  that  the 
(*)estate  had  been  originally  granted  by  the  Crown,  in 
which  grant  there  was  a  reservation  of  tin,  lead,  and  all 
royal  mines,  without  a  right  of  entry  ;  yet,  as  there  had 
been  no  search  made  for  royal  mines  for  one  hundred  and 

(q)  See  2  Atk.  20,  per  Lord  Hardwicke  ;  and  see  Lord  Braybroke 
V.  Inskip,  8  Ves.  jun.  417  ;  Dyke  v.  Sylvester,  21  Ves.  jun.  126. 

(r)  Lyddal  v.  Weston,  2  Atk.  19.  See  Seaman  v.  Vawdrey,  16 
Ves.  jun.  390. 

was  executed  by  three ;  "  by  which  bond,  said  the  court,  these  three 
obhgors  were  bound  for  a  good  and  perfect  title,  with  a  general  war- 
rantee deed  to  be  executed  by  them  all  with  their  wives.  The  deed 
tendered  was  executed  by  one  and  his  wife  only  :  defendant  was  justi- 
fied in  refusing  it." 

A  contract  to  make  "  a  warranty  deed,  free  and  clear  of  all  incum- 
brances," held,  that  the  construction  of  such  a  contract  is,  that  the  pre- 
mises should  in  fact  be  free  from  incumbrances  ;  and  where  it  appeared 
at  the  time  of  the  tender  of  the  deed  that  one  C.  had  an  inchoate  right 
of  dower  in  the  same,  the  court  considered  that  this  was  an  existing  in- 
cumbrance which  justified  the  defendant  in  refusing  to  perform  the  con- 
tract on  his  part.  Porter  v.  Noyes,  2  Greenl.  R.  22.  And  where  the 
plaintiff  stipulated  to  execute  a  deed  with  a  covenant  of  warranty,  held, 
that  he  must  have  the  power  to  give  a  deed,  which  would  convey  an 
indefeasible  title.  Under  such  a  contract  a  mortgage  upon  the  land  is 
an  incumbrance,  which  will  justify  the  purchaser  in  refusing  the  deed. 
Judson  V.  Wass,  11  Johns.  11. 

(211)  See  Ten  Broeck  v.  Livmgsion,  I  Johns.  Ch.  Rep.  367. 

(*352) 


^24  ^^  ^'^^^  TITLE  WHICH 

eleven  years,  and,  upon  examination,  the  probabilitj  was 
great  there  were  no  such  mines,  and  the  Crown,  for  want 
of  a  right  of  entry,  could  not  grant  a  license  to  any  person 
to  enter  and  work  them,  Lord  Hardwicke  decreed  a  spe- 
cific performance. 

Again,  in  a  recent  case(5)3  where  a  man  articled  for 
the  purchase  of  an  estate,  with  some  valuable  mines,  and 
would  not  complete  his  contract  because  the  mines  were 
under  a  common,  wherein  others  had  a  right  of  common, 
and  consequently  he  would  be  subject  to  actions  for 
sinking  shafts  to  work  the  mines  ;  Lord  Eldon,  after 
showing  the  improbability  of  any  obstruction  from  the 
commoners,  said,  that  in  case  such  an  action  were 
brought,  he  should  think  a  farthing  quite  damages 
enough  ;  and  therefore  decreed  a  performance  in  specie. 

This  case,  like  the  last,  must  be  considered  to  have 
turned  on  the  improbability  of  the  purchaser  being  dis- 
turbed ;  otherwise  it  seems  to  have  gone  to  the  utmost 
verge  of  the  law  ;  for  although  such  trifling  damages 
could  only  be  recovered,  yet  that  would  not  be  a  ground 
for  a  nonsuit,  as  was  decided  in  the  late  case  of  Pindar 
V.  Wadsworth(/;).  The  estate,  therefore,  would  subject 
the  purchaser  to  litigation,  whenever  malice  or  caprice 
might  induce  any  of  the  commoners  to  commence  actions 
against  him. 

So  a  mere  suspicion  of  fraud,  which  cannot  be  made 
out,  will  not  enable  a  purchaser  to  reject  the  title.  This 
was  decided  by  Lord  Eldon  in  a  case  where,  under  an 
exclusive  power  of  appointment,  a  father  appointed  to 
one  son  in  fee  ;  and  then  the  father  and  his  wife  and  the 
(*)son  joined  in  conveying  to  a  purchaser,  and  the  money 
was  expressed  to  be  paid  to  them  all.  The  title  was 
objected  to  on  the  ground  of  an  opinion,  by  which  it 

(s)  Anon.  Chan.  7th  Sept.  1803,  MS. 

{t)  2  East,  164. 

(*353) 


A  PURCHASER  MAY  REQUIRE.  ^25 

appeared,  that  the  fother  first  sold  the  estate,  and  then  the 
appointment  was  devised  to  make  a  title,  and  the  pur- 
chase-deed recited  that  the  contract  was  made  with  the 
father  and  son.  And  it  was  insisted  that  if  the  father 
derived  any  benefit  from  the  agreement,  or  even  made  a 
previous  stipulation  that  his  son  should  join  him  in  a  sale, 
which  tliere  appeared  the  strono;est  reason  to  apprehend, 
it  would  have  been  a  fraudulent  execution.  But  Lord 
Eldon  overruled  the  objection,  as  it  did  not  appear  that 
the  estate  sold  for  less  than  its  value,  or  that  the  son  got 
less  than  the  value  of  his  reversionary  interest,  but  merely 
that  he,  as  the  owner  of  the  reversion,  acceded  to  the 
purchase(w). 

If  a  seller  file  a  bill  for  a  specific  performance,  and 
a  third  party  file  a  bill  against  him,  claiming  a  right  to 
the  estate,  the  mere  fact  of  the  pendency  of  the  latter  suit 
is  not  a  sufficient  reason  for  a  Master's  stating  that  a  good 
title  cannot  be  made,  but  the  nature  of  the  adverse  claim 
should  be  examined  and  stated (.r). 

But  if  any  person  has  a  claim  upon  the  estate  which  he 
may  enforce,  a  purchaser  cannot  be  compelled  to  take  the 
estate,  however  improbable  it  may  be  that  the  right  will  be 
exercised.  Thus,  in  the  case  of  Drewe  v.  Corp(?/),  the 
vendor  was  entitled  to  an  absolute  term  of  four  thousand 
years  in  the  estate,  and  also  to  a  mortgage  of  the  rever- 
sion in  fee,  which  was  forfeited  but  not  foreclosed.  It 
was  decided,  that  the  purchaser  who  had  contracted  for 
a  fee,  was  not  bound  to  take  the  term  of  years.  Nor  was 
(*)he  compelled  to  take  the  title  on  the  ground  of  the 
vendor  having  a  forfeited  mortgage  in  fee  of  the   rever- 

(w)  M'Queen  v.  Farquhar,  11  Ves.  jun.  467.  Scepos/  <:h.  17  ;  and 
see  Bainwall  v.  Harris,  1  Tannt.  430  ;  Boswcll  v.  Mcndharn,  6  Madd. 
373. 

(r)  Osbaldeston  V.  Askew,  1  Russ.  160. 

(j/)    Vide  supra,  p.  298. 

VOL.   1.  54  (*354) 


^25  OF  THE  TITLE  WHICH 

sion,  although  it  was  evidently  highly  improbable  that 
any  one  would  ever  willingly  redeem  a  forfeited  mortgage 
of  a  dry  reversion  expectant  upon  an  absolute  term  of 
four  thousand  years. 

So  in  a  late  case(2),  it  appeared  that  in  1704  the 
estate  was  sold  with  a  reservation  of  salt-works,  &c.  with 
a  right  of  entry,  and  the  estate  was  sold  in  1761,  and  no 
notice  taken  of  the  reservation,  and  the  right  had  never 
been  exercised ;  the  Master  of  the  Rolls  was  of  opinion 
that  non-user  did  not  in  this  case  raise  the  inference  that 
the  right  was  abandoned,  and  consequently  the  purchaser 
was  entitled  to  take  the  objection,  and  his  Honor  distin- 
guished this  from  the  case  of  Lyddal  v.  Weston(«) ; 
first,  because  it  was  not  alleged  that  there  was  no  proba- 
bility of  mines,  it  was  rather  admitted  that  there  were : 
secondly,  here  was  the  reservation  of  a  right  of  entry, 
upon  the  want  of  which  Lord  Hardwicke  laid  stress  in 
that  case.  In  the  case  before  his  Honor,  the  purchaser 
chose  to  consider  this  not  as  an  objection  to  the  title> 
but  as  a  ground  for  compensation,  and  it  was  decreed 
accordingly. 

In  a  case  where  a  close  called  the  Croyle  had  always 
been  known  by  that  name,  and  had  been  possessed  by  the 
seller  and  his  ancestors  as  part  of  the  estate  sold,  but  no 
mention  was  made  of  it  in  the  deeds  by  name,  and  all  the 
other  lands  were  particularly  described  ;  the  Court  con- 
sidered the  evidence  of  title  to  be  merely  that  of  long 
possession,  and  held  that  the  purchaser  was  not  bound  to 
accept  the  title  (6). 

But  where  it  is  established  by  evidence  that  a  copyhold 
(*)estate  sold  has  continually  passed  and  been  enjoyed  by 
the  description  contained  in  the  court  rolls,  it  is  not  ma- 


{z)   Seaman  v.  Vawdrej,  16  Ves.  jun.  390. 

(a)    Supra,  p.  351. 

(6)  Eyton  1',  Dickcn,  4  Price,  303. 

(*366) 


A  PURCHASER  MAY  REQUIRE  hcyi 

lerial  that  there  is  only  a  general  and  vague  description 
of  the  estate  on  the  rolls(c),  and  the  purchaser  will  be 
compelled  to  take  the  title. 

Equity  discountenances  the  destruction  of  contingent 
remainders(f/),  yet  if  they  really  are  barred,  a  pur- 
chaser will  be  compelled  to  accept  the  title.  This  point, 
which  was  formerly  doubted,  was  very  fully  argued 
before  Lord  Eldon(e),  who  several  times  expressed  a 
strong  opinion  upon  it  in  favor  of  the  seller,  although 
ultimately  he  was  not  called  upon  to  decide  the  point ; 
and  it  has  since  been  decided  by  Sir  John  Leach,  when 
V^ice-Chancellor(/]). 

In  Beevor  v.  Simpson(o),  the  Master  of  the  Rolls  held, 
that  a  solicitor  who  had  been  employed  by  a  person  to 
advise  on  the  title  to  a  property,  could  not  on  purchasing 
the  same  property  from  his  client  set  up  an  objection  to 
the  title,  which  he  did  not  think  of  any  importance  when 
advising  his  principal.  His  Honor  also  decided,  that 
although  there  were  two  partners,  and  the  purchaser,  who 
was  one  of  them,  did  not  personally  interfere  with  the 
title  or  the  purchase  by  his  client,  and  swore  by  his  an- 
swer that  he  had  no  recollection  of  the  title  at  the  time 
of  his  purchase,  yet  these  circumstances  did  not  vary  the 
rule. 


Where  an  abstract  begins  with  a  recovery  to  bar  an  en- 
tail, it  is  usual  in  practice  to  call  for  the  deed  creating  the 
entail,  in  order  to  see  that  the  estate  tail  and  remainders 
(*)over,  if  any,  were  effectually  barred(l).     But  if  the 

(c)  Long  V.  Collier,  4  Russ.  267. 

{d)  Roake  v.  Kidd,  5  Ves.  jun.  647. 

(c)   Kenn  v.  Corbett,  MS. 

(/■)   Hasker  r.  Sutton,  2  Sim.  &  Stu.  313. 

(g)  1  Tatnlyn,  69. 

]  X 

(I)  This  makes  it  advisable  in  deeds  for  an  estate  tail  to  recite  so 

(*356) 


428 


OF  THE  TITLE  WHICH 


deed  is  lost,  and  possession  has  gone  with  the  estates  cre- 
ated by  the  recovery,  for  a  considerable  length  of  time, 
and  the  presumption  is  in  favor  of  the  recovery  having 
been  duly  suffered,  the  purchaser  will  be  compelled  to  take 
the  title,  although  the  contents  of  the  deed  creating  the 
entail  do  not  actually  appear(/i). 

So  where  an  old  deed  recites  prior  deeds,  and  the 
seller  is  unable  to  procure  the  instruments  recited,  the 
true  inquiry  is,  whether  the  absence  of  the  deeds  recited 
throws  any  reasonable  doubt  upon  the  title.  Where 
there  is  a  title  of  sufficient  age  without  the  aid  of  the 
recited  deeds,  and  no  circumstance  to  repel  the  presump- 
tions in  favor  of  the  title,  the  Court  will  compel  the 
purchaser  to  accept  it(z). 

Where  a  vendor  is  tenant  in  tail,  with  reversion  to 
himself  in  fee,  and  the  reversion  has  vested  in  different 
persons,  a  common  recovery  is  generally  required  by 
a  purchaser  ;  because  that  bars  the  remainder,  while  a 
fine  lets  it  into  possession,  and  thereby  subjects  the  whole 
fee  to  any  incumbrance  which  before  affected  the  rever- 
sion only.  But  unless  some  incumbrance  appear,  or  the 
title  to  the  reversion  is  not  clearly  deduced,  the  Court 
will  not  compel  a  vendor  to  suffer  a  recovery  on  account 
of  the  mere  probability  of  the  reversion  having  been 
incumbered(I). 

(*)Thus  in  a  late  case(A;),  upon  an  exception  to  the 
Master's  report   in   favor  of  the  title,   the   objection  to 

(/t)  Coussmaker  v.  Sewell,  Ch.  4th  May  1791,  MS. ;  Appendix,  No. 
14  ;  and  see  Nouaille  v.  Greenwood,  1  Turn.  26. 
(j)   Prosser  v.  Watts,  6  Madd.  69. 
{h)  Sperling  v.  Trevor,  7  Ves.  jun.  497. 

much  of  the  instrument  under  which  the  tenant  in  tail  claims  as  will 
manifest  his  power  of  barring  the  estate  tail  and  remainders  over. 

(I)  This  is  allowed  to  remain  as  an  illustration  of  the  doctrine,  al- 
though the  law  is  now  altered  by  the  3  &  4  W.  4,  c.  74. 

(*357) 


A  PURCHASER  MAY  REQUIRE.  ^29 

the  title  was,  that  one  Elizabeth  Baker  ought  to  join  in 
a  recovery ;  the  title  being  derived  from  John  Pain, 
who,  in  1693,  limited  the  estate  to  the  use  of  himself  for 
life  ;  remainder,  subject  to  a  term,  to  uses  which  never 
arose  ;  remainder  to  his  daughters  in  tail ;  remainder  to 
himself  in  fee.  Under  these  limitations,  Elizabeth,  an 
only  daughter,  became  seised  in  tail,  with  the  immediate 
reversion  to  her  father,  who  made  a  will,  not  executed  so 
as  to  pass  real  estate,  whereby  he  devised  all  his  estate  to 
his  second  wife.  Upon  his  death,  Elizabeth  his  daughter 
entered,  and  levied  a  line.  She  had  issue  a  daughter, 
Elizabeth,  who  married  William  Baker.  They  had  issue 
one  daughter,  Elizabeth  Baker.  From  her  the  estate 
was  purchased  under  a  decree,  and  by  mesne  purchases 
became  vested  in  the  plaintiff.  The  defendant,  the  pur- 
chaser, suggested,  that  the  ultimate  remainder  in  fee 
might  have  been  by  deed  or  will  disposed  of  by  John 
Pain,  or  by  any  other  person  to  whom  it  might  have 
descended  ;  and  if  the  same  should  have  been  so  disposed 
of,  it  could  then  be  barred  only  by  Elizabeth  Baker.  The 
Lord  Chancellor  held  a  recovery  not  necessary. 

At  this  day  it  frequently  happens,  that  in  deeds  secur- 
ing debts  on  real  estate,  the.  estate  is  authorized  to  be 
sold  without  the  assent  of  the  owner,  in  case  default  is 
made  in  payment  of  the  money  on  the  day  named.  Such 
a  security  is  so  far  a  mortgage,  that  the  owner  may  at  any 
time  before  a  sale  require  a  re-conveyance  upon  paying 
the  money  due  ;  and  in  consequence  of  the  old  rule,  that 
once  a  mortgage  always  a  mortgage,  the  owner  is  in 
these  cases  usually  required  to  join  in  the  conveyance, 
(*)which  he  is  mostly  unwilling  to  do ;  his  object  being  to 
prevent  a  sale.  But  it  has  been  decided  by  Lord  Eldon, 
that  the  objection  cannot  be  sustained,  and  this  decision 
was  made  in  a  case  where  the  deed  was  in  form  a  regular 
mortgage  with  a  power  of  sale,  and  the  mortgagor  in  his 

(*35S) 


430 


OF  THE  TITLE  WHICH 


answer  stated  that  he  actually  resisted  the  sale  as  having 
been  made  without  his  consent  and  at  an  undervalue(/). 
This  has  been  followed  in  many  later  cases,  and  is  now 
an  established  Yu\e(m). 


I.  It  is  clear  that  a  woman  is  barred  of  her  dower,  both 
at  law  and  in  equity,  by  a  legal  term  created  previously 
to  her  right  of  dower  attaching  on  the  estate,  of  which  an 
assignment  has  been  obtained  by  a  purchaser  to  attend 
the  inheritance(n).  For  although  she  can  recover  her 
dower  at  law,  it  will  be  with  a  cesset  executio  during  the 
term,  and  equity  will  not  remove  the  bar.  But  notwith- 
standing that  a  purchaser  could  obtain  an  assignment  of 
an  outstanding  term,  which  would  bar  the  vendor's  wife 
of  her  dower,  a  fine  was  always  required  from  the  vendor 
and  his  wife  at  his  expense.  It  was,  however,  decided, 
that  a  court  of  equity  would  enforce  a  purchaser  to  accept 
the  title  without  a  fine(o). 

The  wife  of  a  trustee  in  fee,  or  of  a  mortgagee  in  fee 
of  a  forfeited  mortgage,  is  at  law  entitled  to  dower ;  but 
a  fine  is  on  that  account  never  required  by  a  purchaser  ; 
because,  if  the  wife  of  a  trustee  or  a  mortgagee  were  to 
(*)be  so  ill-advised  as  to  prosecute  her  legal  claim,  equity 
would,  at  this  day,  undoubtedly  saddle  her  with  all  the 
costs(jp). 

(l)  Clay  V.  Sharpe  and  others,  Ch.  Mich.  Term.  1802,  Lib.  Reg.  A. 
1802,  fo.  66,  Appendix,  No.  15. 

(«i)  Baker  v.  Dibbin,  Dibbin  v.  Baker,  Exch.  April  20,  1812,  MS. ; 
Corder  v.  Morgan,  18  Ves.  344 ;  JVote,  Stabback  v.  Leatt,  Coop.  46, 
which  was  taken  from  a  hasty  note  on  a  brief,  is  not,  when  attentively 
considered,  an  authority  the  other  way. 

(n)    Vide  infra,  ch.  9. 

(o)  See  10  Ves.  jun.  261,  262  ;   1  Jac.  &  Walk.  665 ;   1  Jac.  490. 

(p)  See  Noel  v.  Jevon,  Bevant  v.  Pope,  2  Freem.  43,  71.  See 
Gervoyes's  case,  Mo.  717,  pi.  1002  ;  and  see  4  Co.  3  b  ;  4  Bro.  C.  C. 
606,  n  ;  Mansfield's  case,  Harg.  n.  81 ;  Co.  Litt.  33,  a  ;  Simpson  v. 
Gutteridge,  1  Madd.  609. 

(*359) 


A  PURCHASER  MAY  REQUIRE  ^g] 

It  was  a  point  of  some  nicety,  which  was  in  former 
editions  discussed  at  length  in  this  place,  whether  where 
the  wife  of  a  vendor  had  only  an  equitable  jointure, 
a  purchaser  could  require  a  fine.  But  the  late  sta- 
tutes(^)  have  rendered  it  unnecessary  to  do  more  than 
refer  to  the  authorities  with  a  view  to  cases  depending 
upon  the  old  law. 

It  is  not  necessary  that  a  wife  should  previously  to 
marriage  be  a  party  to  the  deed  securing  her  jointure,  but 
there  is  no  decision  to  prove  that  a  jointure  can  be  made 
upon  a  wife  before  marriage  without  the  privity  of  herself, 
or  if  under  age  of  her  guardian,  which  will  bind  her(r). 
There  have  been  different  opinions  upon  this  question ; 
but  if  a  wife  could  be  barred  without  her  privity,  a  man 
might  in  every  case  secretly  bar  his  wife  of  dower  by  a 
mere  nominal  jointure.  The  statute  does  not  authorize 
such  a  fraud ;  and  it  would  lead  to  great  inconvenience 
to  refer  it  to  a  jury  to  inquire  whether  a  jointure  made 
without  the  wife's  privity  was  fraudulent  or  not.  The 
power  which  the  statute  reserves  to  a  woman  to  elect  her 
dower  where  a  jointure  is  made  after  marriage,  unless  by 
act  of  parliament,  appears  to  proceed  on  the  ground  that 
she  is  during  the  coverture  incapable  of  consenting  to 
the  jointure  without  the  aid  of  parliament ;  and  seems  to 
prove  that  the  legislature  could  not  intend  to  bind  her  by 
a  jointure  made  without  her  privity,  when  she  was  com- 
petent (*)to  consent.  If  her  consent  was  not  necessary, 
it  would  be  unimportant  whether  the  jointure  was  made 
by  her  husband  before  or  after  marriage.  At  the  common 
law,  a  jointure  before  marriage  was  not  a  bar  of  dower 
for  two  reasons  :  1.  Because  the  woman  had  no  title  of 
dower  at  the  time  of  the  acceptance  of  the  satisfaction ; 

(9)   3  &  4  W.  4,  c.  74  ;   3  &  4  W.  4,  c.  105. 

(r)  In  Jordan  v.  Savage,  2  Eq.  Ca.  Abr.  101,  the  widow  took  pos- 
session of  the  lands  limited  to  her  for  her  jointure  by  the  articles  ;  see 
2  Eden.  66. 

(*360) 


432 


OF  THE  TITLE  WHICH 


2.  Because  no  collateral  satisfaction  can  bar  any  right  or 
title  of  any  inheritance  or  freehold.     Coke  explains  the 
origin  of  jointures  thus  :  Before  the  making  of  the  statute 
of  uses,  the  greatest  part  of  the  land  in  England  was  con- 
veyed to  uses,  and  as  a  wife  was  not  dowable  of  uses,  her 
father  or  friends  upon  her  marriage  procured  the  husband 
to  take  an  estate  from  his  feoffees,  or  others  seised  to  his 
use,  to  him  and  to  his  wife  before  or  after  marriage  for 
their  lives  or  in  tail, /or  a  competent  provision  for  the  wife 
after  the  husband's  death.     Then  came  the  statute  of  uses, 
by  the  operation  of  which,  if  further  provision   had  not 
been  made,  the  wives  would  have  J  as  well  their  dowers  as 
their  jointures,  and  for  this  reason   the  branches  concern- 
ing jointures  were  added  to  the  statute(s).     In  a  passage 
where  Coke  says,  that  if  a  jointure  is  made  to  a  woman 
before  marriage  the  wife  cannot  wave  it,  he  refers  to  an 
authority  in  which  the  jointure  was  made  in  performance 
of  covenants(/).     It  is  evident  that  Coke  considered  that^ 
her  assent  was  requisite  to  a  jointure  made  before  mar- 
riage.    Gilbert  was  of  the  same  opinion.     In  his  Uses(M), 
he  says,   if  a  jointure  be  made  before  marriage,  she  is 
sole,  and  as  such  under  no  man^s  power ;  if  after  marriage 
she  take  a  jointure  in  satisfaction  of  a  dower,  she  may 
wave  it  after  coverture.     But  whatever  may  be  the  law 
on  this  point,  no  jointure  is  ever  made  without  the  wife's 
privity.      No  case    has    occurred    since    the    statute  of 
Henry  8.  of  a  jointure  made  without  the  wife's  privity, 
(*)and  not  afterwards  accepted  by  her.     Of  course,  there- 
fore, no  distinction  ever  existed  in  practice  between  such 
cases,  and  cases  where  the  wife  being  adult  consented  to 
the  provision.     The  provision  in  each  case,  that  is,  whe- 
ther made  with  or  without  her  consent,  equally  proceeds 
from  the  husband,  and  is  equally  supported  by  the  same 
consideration  ;  viz.  marriage.     If  the  jointure,  made  with 

(«)  4  Rep.  1  b,  2  a.  (/)  lb.  3.  (n)  Page  162. 

(*361) 


A  PURCHASER  MAY  REQUIRE.  AQQ 

the  wife's  privity  before  marriage,  does  not  preclude  her 
from  claiming  dower  out  of  her  husband's  other  estates, 
if  she  be  evicted  from  her  jointure,  mider  the  provision 
in  the  statute,  of  course  the  same  rule  must  prevail  in 
equity.  Clearly,  equity  could  not,  on  the  ground  of  im- 
plied contract,  or  of  the  wife's  right  to  investigate  the 
title  to  the  jointure  lands,  restrain  her  from  claiming  her 
dower  out  of  her  husband's  other  estates.  No  such 
equity  has  ever  been  administered.  It  is  admitted,  that 
jointures  made  with  the  wife's  privity  are  only  a  bar  by 
force  of  the  statute,  but  the  bar  does  not  extend  to  the 
excepted  case  of  an  eviction  of  the  dower ;  and  to  raise 
a  case  of  equity  against  a  w'oman  claiming  the  benefit  of 
the  exception,  it  \^  ould  be  necessary  to  prove  an  express 
contract  by  her  relinquishing  such  benefit. 

The  Author,  in  the  last  edition,  stated  his  impression  to 
be,  that  where  an  estate  would  be  subject  to  the  dower  of 
the  vendor's  wife,  if  she  were  not  barred  by  a  jointure, 
whether  legal  or  equitable,  the  vendor  must  either  pro- 
cure his  wife  to  levy  a  fine  of  the  estate  at  his  own  ex- 
pense, or  must  produce  a  satisfactory  title  to  the  jointure 
lands.  And  this  was  no  more  than  is  constantly  required 
where  an  estate  has  been  taken  in  exchange.  The 
vendor  is  compelled  to  produce  the  title  not  only  to  the 
estate  sold,  but  also  to  the  estate  given  by  him  in  ex- 
change. The  same  principle  applied  to  the  case  under 
consideration. 

(*)But  this,  like  the  former  point,  is  only  material  with 
reference  to  cases  not  within  the  late  Act,  to  which  re- 
ference will  shortly  be  made.  A  fine  cannot  now  be 
levied. 


II.  Equity  appears  to  consider  any  provision,  however 
inadequate  or  precarious  it  may  be,  which  an  adult  jue- 
viously  to  marriage   accepts  in    lieu    of  dower,  a   good 

VOL.   I.  65  (*362) 


434 


OF  THE  TITLE  WHICH 


equitable  jointure(.T)(213)  :  and  will  in  some  cases  even 
imply  an  intention  to  bar  the  wife  of  her  dower ;  thus, 
where  a  provision  was  made  for  the  livelihood  and  main- 
tenance of  the  wife  after  her  husband's  death,  although  it 
was  not  expressed  to  be  in  bar  of  dower,  yet  it  was 
holden  to  be  a  bar  in  equity,  on  the  implied  intention  of 
the  parties(«/)(214). 

But  in  a  case  where  a  leasehold  estate  was  settled  be- 
fore marriage  upon  the  intended  wife  "  in  recompense, 

{x)  Jordan  v.  Savage,  Bac.  Abr.  Jointure,  (B)  6  ;  Charles  v.  An- 
drews, 9  Mod.  152;  Williams  v.  Chitty,  3  Ves.  jun.  545  ;  4  Bro.  C. 
C.  513.  This  was  admitted  by  the  counsel  for  the  appellants  in  Drury 
V.  Drury.     See  5  Bro.  P.  C.  581. 

{y)  Vizard  v.  Longdale,  3  Atk.  8,  cited ;  reported  2  Kel.  Cha.  Ca;. 
17,  nom.  Vizod  v.  London.  See  2  Com.  Dig.  148  ;  Estcourt  v.  Est- 
court,  1  Cox,  20.  See  Tinny  v.  Tinny,  3  Atk.  8  ;  Couch  v.  Statton, 
4  Ves.  jun.  391  ;  and  Garthshore  v.  Chalie,  10  Ves.  jun.  20.  See 
Sugd.  n.  (7)  to  Gilb.  on  Uses,  p.  332. 

(213)  See  Hastings  \.  Dickinson,  7  Mass.  Rep.  163.  Jlmhler  \. 
JYorton,  4  Hen.  &  Munf.  23. 

In  Hastings  v.  Dickinson,  it  was  held,  that  where  the  wife  covenant- 
ed in  a  marriage  settlement  not  to  demand  dower  in  the  husband's  es- 
tate in  consideration  of  an  annuity,  which  was  to  be  paid  out  of  his  es- 
tate, this  was  no  bar  of  dower.  At  common  law  a  jointure  made  to  a 
wife,  before  or  after  marriage,  was  no  bar  to  her  dower  ;  because  the 
dower  being  a  freehold  could  not  be  barred  by  any  collateral  satisfaction. 
And  no  jointure  is  a  bar  within  the  statute  of  27  Hen.  8.  c.  10,  unless 
it  be  a  freehold  in  lands,  tenements  or  hereditaments,  for  the  life  of  the 
wife  at  least,  and  which  shall  take  effect  in  possession  or  profit  imme- 
diately on  the  husband's  death.  The  covenant  cannot  have  the  effect 
of  a  release  of  dower  ;  for  a  release  of  a  future  demand,  not  then  in 
existence,  is  void.  On  this  principle,  if  there  be  any  relief  against  the 
widow  on  her  covenant,  it  must  be  by  action. 

(214)  See  Van  Orden  v.  Van  Orden,  10  Johns.  Hep.  30.  Msit  v. 
Msit,  2  Johns.  Ch.  Rep.  448.  See  also,  Smith  v.  Kniskern,  4  Johns. 
Ch.  Rep.  9.  Swaine  v.  Ferine,  6  Johns.  Ch.  Rep.  482.  fVcbb  v. 
Evans,  565,  672.  Kennedy  v.  JVedroiv,  1  Dall.  413.  Creacraft  v. 
Wions,  Addis.  350.  Herbert  v.  Wren,  7  Cran(;h,  370.  Ward  v.  Wil- 
son, 1  Des.  401,  409.     Snelgrove  v.  Snelgrove,  4  Des.  274,  293. 


A  PURCHASER  MAY  REQUIRE.  ^^ 

and  bar  of  dower,  and  for  a  provision  for  her,"  and  the 
husband  had  no  real  estate,  it  was  held  that  the  wife's 
right  to  thirds  was  not  barredfz).  For,  as  the  declared 
object  was  to  bar  her  of  dower,  no  implication  could  be 
admitted,  that  she  was  to  be  barred  of  thirds  also;  the 
direction  that  the  settlement  was  for  a  provision  for  her, 
only  expressed  the  effect  of  the  settlement,  and  could  not 
be  deemed  evidence  of  an  intention  to  bar  her  of  a  ri^ht 
which  was  not  named. 

(*)So,  as  infants  are  within  the  statute  of  Henry  8.(«), 
and  may  be  barred  of  dower  at  law,  they  may  in  like 
manner  be  barred  by  an  equitable  jointure(6). 

But  an  equitable  provision  in  bar  of  dower  will  not 
bind  an  infant,  unless  it  be  as  certain  a  provision  as  her 
dower.  Therefore  a  settlement  of  an  estate  upon  an  in- 
fant for  life,  after  the  death  of  her  husband  and  any  third 
person,  will  not  be  a  good  bar,  as  the  stranger  may  sur- 
vive the  wife(c).  So  a  provision  that  the  personal  estate 
shall  go  according  to  the  custom  of  London,  in  bar  of 
dower,  or  any  provision  of  that  nature,  will  not  be  deemed 
an  equitable  bar  of  dower  to  an  infant,  on  account  of  the 
uncertainty  and  precariousness  of  the  provision(^). 

Supposing  an  equitable  jointure  to  be  merely  charged 
on  stock  vested  in  trustees,  and  the  wife  to  have  been  mar- 
ried under  age,  there  seems  reason  to  contend,  that  if  the 
fund  should  be  wasted  by  the  trustees,  equity  would  not 
restrain  the  wife  from  proceeding  for  her  dower  ;  and  in 

(s)  Cresswcll  r.  Byron,  3  Bro.  C.  C.  362.  See  Pickering  u.  Lord 
Stamford,  3  Yes.  jun.  332. 

(a)  Drury  v.  Drury,  or,  Earl  of  Bucks  v.  Drury,  6  Bro.  P.  C.J570; 
4  Bro.  C.  C.  606,  n. ;   Wilmot,  177. 

(6)   See  the  cases,  ante  n.  (/). 

(c)  Caruthers  v.  Caruthers,  4  Bro.  C.  C.  600.  See  Corbet  v.  Cor- 
bet, 1  Sim.  &  Stu.  612,  which  was  affirmed  by  the  Lord  Chancellor 
upon  appeal. 

(rf)  Smith  i\  Smith,  5  Vcs.  jun.  189  ;  6  Russ.  254. 

(*363) 


436 


OF  THE  TITLE  WHICH 


that  case  a  purchaser  would  certainly  have  been  entitled 
to  a  fine(I). 

In  Caruthers  v.  Caruthers(e),  Lord  Alvanley,  then 
Master  of  the  Rolls,  addressing  himself  to  what  was  and 
what  was  not  an  equitable  bar  of  dower  to  an  infant,  put 
the  case  of  a  charge  in  bar  of  dower  made  upon  an 
estate  wath  a  bad  title,  and  held  that  it  would  be  no  bar. 
Therefore,  whatever  opinion  may  be  entertained  on  the 
general  question,  a  purchaser  must  be  satisfied  of  the  title 
(*)to  the  lands  upon  which  the  equitable  jointure  of  a  feme 
covert  married  under  age  is  charged.  And  where  the 
settlement  rests  in  covenant,  the  purchaser  should  not 
complete  his  contract  until  the  covenant  be  actually  per- 
formed ;  for  an  alienation  by  the  husband  of  the  fund  out 
of  which  the  jointure  is  to  arise,  will  be  deemed  an  evic- 
tion of  the  fund,  and  consequently  the  wife  will  be  let  in 
for  her  dower(y^. 


III.  The  foregoing  observations  apply  to  the  law  as 
it  stood  before  the  3  &  4  Wil.  4,  c.  105.  That  Act  is 
not  to  extend  to  the  dower  of  any  widow  who  shall  have 
been  or  shall  be  married  on  or  before  the  1st  January 
1834,  and  is  not  to  give  to  any  will,  deed,  contract,  en- 
gagement or  charge  executed,  entered  into,  or  created 
before  that  day,  the  effect  of  defeating  or  prejudicing  any 
right  to  dower(^).  It  is,  therefore,  still  necessary  to 
know  what  the  law  was  wath  reference  to  the  cases  to 
which  the  Act  does  not  extend.     And  it  must  be  borne  in 


(e)  4  Bro.  C.  C.  500.     See  5  Yes.  jun.  192. 

(/)   Druiy  V.  Diury,  4  Bro.  C.  C.  606,  n. 

(o)  Sec.  14.  The  3  &  4  W.  4,  c.  74,  s.  77,  may  be  held  to  extend 
to  dower,  so  as  to  enable  a  married  woman  to  destroy  it,  but  it  does  not 
in  expression  accurately  embrace  it. 


(I)'  This  point  does  not  appear  to  be  decided  either  by  Drury  v. 
Drury,  or  Williams  v.  Chitty. 
(*364) 


A  PURCHASER  MAY  REQUIRE.  ^q 

mind  that  as  to  widows  within  the  exception,  their  rights 
are  saved  in  estates  acquired  by  their  husbands,  even  after 
the  1st  January  1834. 

The  rislit  of  dower  of  women  married  after  the  1st 
January  1834,  is  placed  on  altogether  a  different  footing. 
It  is  enacted,  that  when  a  husband  shall  die,  beneficially 
entitled  to  any  land(I)  for  an  interest  which  shall  not 
entitle  his  widow  to  dower  out  of  the  same  at  law,  and 
such  interest,  whether  wholly  equitable,  or  partly  legal 
(^)and  partly  equitable,  shall  be  an  estate  of  inheritance  in 
possession,  or  equal  to  an  estate  of  inheritance  in  posses- 
sion, (other  than  an  estate  in  jointenancy,)  then  his 
widow  shall  be  entitled  in  equity  to  dower  out  of  the  same 
land(/t),  so  that  now  dower  attaches  on  equitable  estates. 

And  when  a  husband  shall  have  been  entitled  to  a  right 
of  entry  or  action  in  any  land,  and  his  widow  would  be  en- 
titled to  dower  out  of  the  same  if  he  had  recovered  posses- 
sion thereof,  she  shall  be  entitled  to  dower  out  of  the  same 
although  her  husband  shall  not  have  recovered  possession 
thereof;  provided  that  such  dower  be  sued  for  or  obtained 
within  the  period  during  which  such  right  of  entry  or 
action  might  be  enforced(/). 

1.  The  above  are  both  provisions  extending  the  wife's 
right  to  dower  ;  but  the  other  provisions  place  the  right 
altogether  in  the  power  of  the  husband.  For  no  widow^ 
shall  be  entitled  to  dower  out  of  any  land  which  shall 
have  been  absolutely  disposed  of  by  her  husband  in  his 
lifetime,  or  by  his  will(/c). 

{h)  Sec.  2. 
(t)  Sec.  3. 
(A;)  Sec.  4. 

(I)  The  word  "land"  shall  extend  to  manors,  advowsons,  messuages, 
and  all  other  hereditaments,  whether  corporeal  or  incorporeal  (except 
such  as  are  not  liable  to  dower),  and  to  any  share  thereof;  and  every 
word  importing  the  singular  number  only  shall  extend  and  be  applied  to 
several  persons  or  things  as  well  as  one  person  or  tlung;  sect.  1. 

(*365) 


438 


OF  THE  TITLE  WHICH 


2.  All  partial  estates  and  interests,  and  all  charges 
created  by  any  disposition  or  will  of  a  husband,  and  all 
debts,  incumbrances,  contracts,  and  engagements  to  which 
his  land  shall  be  subject  or  liable,  shall  be  valid  and 
effectual  as  against  the  right  of  his  widow  to  dower(/). 

3.  And  a  widow  shall  not  be  entitled  to  dower  out  of 
any  land  of  her  husband  when  in  the  deed  by  which  such 
land  was  conveyed  to  him,  or  by  any  deed  executed  by 
him,  it  shall  be  declared  that  his  widow  shall  not  be  en- 
titled to  dower  out  of  such  land(m). 

4.  And  a  widow  shall  not  be  entitled  to  dower  out  of 
any  land  of  which  her  husband  shall  die  wholly  or  par- 
tially intestate  when  by  the  will  of  her  husband,  duly 
(*)executed  for  the  devise  of  freehold  estates,  he  shall  de- 
clare his  intention  that  she  shall  not  be  entitled  to  dower 
out  of  such  land,  or  out  of  any  of  his  land(/i). 

5.  And  the  right  of  a  widow  to  dower  shall  be  subject 
to  any  conditions,  restrictions,  or  directions  which  shall 
be  declared  by  the  will  of  her  husband,  duly  executed  as 
a  foresaid  (o). 

There  appears  to  have  been  no  sufficient  ground  for  this 
alteration  of  the  law.  The  wife's  ancient  right  of  dower 
has  been  in  effect  taken  away.  And  surely  it  is  inconsis- 
tent, whilst  you  enable  the  husband  in  every  case  to  defeat 
it,  to  extend  the  right  over  equitable  estates.  The  first 
clause  of  the  provision,  No.  3,  was  suggested  by  the 
Author,  and  was,  by  the  desire  of  Lord  Eldon,  introduced 
into  a  bill  for  altering  the  statute  of  limitations,  brought 
into  the  House  of  Commons  by  the  present  Vice-Chan- 
cellor,  when  he  was  a  member  of  that  House.  It  was  no 
infringement  upon  the  right  of  the  wife,  for  as  the  husband 
might  have  limited  the  estate  to  uses  to  bar  dower,  so  as  to 
prevent  dower  from  attaching,  there  was  no  reason  why  his 

(I)  Sec.  5.  (»i)  Sec.  6. 

(«)   Sec.  7.  (o)   Sec.  8. 

(*366) 


A  PURCHASER  MAY  REQUIRE.  439 

simple  declaration  should  not  have  the  same  operation  ; 
and  the  object  was  to  prevent  the  unnecessary  creation  of 
powers.  But  the  vesting  of  a  power  in  the  husband  to 
defeat  the  wife's  right  after  it  has  attached  must  be  de- 
fended upon  different  grounds. 

Tiie  Act  then  proceeds  to  provide  for  the  cases  in  which 
testamentary  provisions  by  the  husband  for  his  wife  sh^ll 
be  a  bar  of  her  dower. 

1.  Where  a  husband  shall  devise  any  land  out  of  which 
his  widow  would  be  entitled  to  dower  if  the  same  were 
not  so  devised,  or  any  estate  or  interest  therein,  to  or  for 
the  benefit  of  his  widow,  such  widow  shall  not  be  entitled 
to  dower  out  of  or  in  any  land  of  her  said  husband, 
(*)unless  a  contrary  intention  shall  be  declared  by  his 
\vi\](p). 

2.  But  no  gift  or  bequest  made  by  any  husband  to  or 
for  the  benefit  of  his  widow  of  or  out  of  his  personal 
estate,  or  of  or  out  of  any  of  his  land  not  liable  to  dower, 
shall  defeat  or  prejudice  her  right  to  dower,  unless  a  con- 
trary intention  shall  be  declared  by  his  will(9). 

And  it  is  provided  that  nothing  in  the  Act  contained 
shall  prevent  any  court  of  equity  from  enforcing  any 
covenant  or  agreement  entered  into  by  or  on  the  part  of 
any  husband  not  to  bar  the  right  of  his  widow  to  dower 
out  of  his  lands(r).  Nor  is  any  thing  in  the  Act  to  in- 
terfere with  any  rule  of  equity,  or  of  any  ecclesiastical 
court,  by  which  legacies  bequeathed  to  widows  in  sa- 
tisfaction of  dower  are  entitled  to  priority  over  other 
legacies  (5). 

Lastly,  dower  ad  ostium  ecdesicB,  and  dower  ex  assensu 
patris,  are  abolished(/^). 


In  the  case  of  Pope  v.  Simpson(M),  Lord  Rosslyn  ap- 

ip)   Sec.  9.  (q)  Sec.  10. 

(r)  Sec.  11.  {s)   Sec.  12. 

(/)   Sec.  13.  („)  5  Ves.  jun.  145. 

(*367) 


440 


OF  THE  TITLE  WHICH 


pears  to  have  held,  that  persons  purchasing  from  the 
assignees  of  a  bankrupt  have  no  right  to  expect  more, 
than  that  the  assignees  should  deliver  over  such  title  as 
the  bankrupt  had.  This  decision,  however,  was  opposed 
by  prior  cases(a;),  and  the  general  rules  of  equity ;  and 
in  a  Jate  case  Lord  Eldon  expressly  denied  the  doctrine 
advanced  by  Lord  Rosslyn(7/) ;  and  Sir  William  Grant 
actually  decided,  that  assignees  stand  in  the  situation  of 
ordinary  vendors(2:). 

(*)But  in  a  case(«)  where  assignees,  having  a  defective 
title,  put  it  up  to  sale,  and  one  of  the  conditions  stated, 
that  the  purchaser  should  have  an  assignment  of  the 
bankrupt's  interest  to  one  moiety  of  the  estate,  under  such 
title  as  he  lately  held  the  same,  an  abstract  of  which  might 
be  seen  at  a  place  named  in  the  conditions,  the  Vice- 
Chancellor  stated,  that  a  vendor,  if  he  thinks  fit,  may 
stipulate  for  the  sale  of  an  estate  with  such  title  only  as 
he  happens  to  have  ;  and  he  held,  that  in  this  case  the 
assignees  sold  only  such  title  as  they  had  ;  but  as  it  was 
stated  that  the  conditions  of  sale  were  not  circulated 
before  the  sale,  the  purchaser  was  offered  an  inquiry  as 
to  this  fact. 

Conditions  like  that  in  Freme  v.  Wright  should  be 
looked  at  with  great  jealousy,  as  they  are  often  traps  for 
the  unwary  ;  and  the  Court  should  at  least  expect  the  fact 
to  be  broadly  stated,  that  the  seller  only  sells  such  title  as 
he  has,  without  warranting  the  same. 

In  Dick  V.  Donald,  in  the  House  of  Lords,  where  the 
articles  of  roup  in  Scotland  bound  the  seller  to  execute 
and  deliver  a  valid  irredeemable  disposition  of  the  pro- 

(x)  Spurrier  v.  Hancock,  4  Ves.  jun.  667;  and  see  Orlebar  v.  Flet- 
cher, 1  P.  Wms.  737. 

{y)  White  v.  Foljambe,  11  Ves.  jun.  337  ;  and  see  18  Ves.  612. 

(s)  M'Donald  v.  Hanson,  12  Ves.  jun.  277. 

(a)  Freme  v.  Wright,  4  Madd.  364.  See  Baxters.  ConoUy,  1  Jac. 
&  Walk.  576  ;  Wilmot  v.  Wilkinson,  6  Barn.  &  Cress.  606. 

(*368) 


A  PURCHASER  MAY  REQUIRE.  ;,K-t 

perty,  and  to  deliver  to  the  purchaser  certain  specified 
i  nstruments,  "  which  are  all  the  title-deeds  of  the  pro- 
perty in  his,  the  seller's  custody,"  and  it  was  insisted  that 
the  title  was  limited  by  the  articles  of  roup,  it  was  de- 
cided otherwise  ;  and  Lord  Eldon  said,  that  he  could 
see  nothing  in  the  article  of  roup  to  take  away  the  right 
to  a  good  title.  As  to  the  condition  with  respect  to  the 
title-deeds,  he  never  heard  that  because  the  seller  pro- 
vides, by  the  condition,  that  he  will  give  to  the  purchaser 
only  certain  specified  deeds,  the  purchaser  must  take 
a  bad  title,  or  such  title  as  appears  upon  the  deeds(6). 

(*)In  Clarke  v.  Faux(c),  an  estate  was  sold  by  assignees 
of  a  bankrupt^  and  a  good  title  was  to  be  made.  One  of 
the  assignees  purchased  and  took  possession.  He  agreed 
to  sell  to  the  plaintiff,  who  entered  into  possession,  and 
paid  part  of  his  purchase-money.  A  dispute  was  termi- 
nated by  an  agreement  that  the  plaintiff  should  pay  the 
residue  of  the  purchase-money  on  a  day  named,  together 
with  interest,  upon  the  seller  to  him  making  a  good  title  to 
the  premises,  or  otherwise,  if  such  title  should  not  then  be 
completed,  upon  the  seller  executing  at  his  own  expense 
a  bond  to  complete  such  title^  and  to  convey  the  estate  as 
soon  as  the  same  could  be  completed.  A  good  title  could 
not  be  made  by  the  seller  to  the  plaintiff,  who  recovered 
the  residue  of  the  purchase-money  at  law,  and  having  ten- 
dered a  bond  conditioned  for  making  a  good  title  to  the 
purchaser,  he  insisted,  in  answer  to  the  plaintiff's  bill, 
that  the  plaintiff  was  bound  to  take  the  property  with 
the  bond,  whether  a  good  title  could  be  made  or  not. 
But  it  was  held  that  the  meaning  of  the  parties  was,  that 
the  money  was  to  be  paid  on  the  day  named,  although  the 
title  might  not  then  be  completed ;  but  subject  always 
to  this  condition,  that  the  vendor  had   the  power  to  coni- 

{b)    1  Bligh,  N.  S.  655. 

(c)   .3  Russ.  320. 

VOL.  I.  56  (*369) 


AAQ  OF  THE  TITLE  WHICH 

plete  it,  and  that  it  was  not  intended   that  it  should  be 
paid  if  the  vendor  did  not  possess  such  power. 

Formerly,  where  a  vendor  claimed  under  a  modern  will, 
by  which  the  heir  at  law  was  disinherited,  it  was  usual  to 
require  the  will  to  be  proved  in  equity  against  the  heir  at 
]aw(^)  :  but  this  practice  is  now  almost  wholly  discontinu- 
ed. In  the  case  of  Colton  v.  Wilson(e),  the  purchaser 
was  in  the  first  instance  discharge  from  his  purchase  on 
account  of  the  will  not  being  proved  against  the  heir  at 
(*)law ;  but  on  a  re-hearing  he  was  compelled  to  take  the 
title.  This  decree,  however,  was  made  on  the  particular 
circumstances  of  the  case,  and  the  point  was  by  no  means 
settled.  In  Bellamy  v.  Livers  idge(X),  the  title  received 
the  Master's  approbation,  although  the  will  was  not  proved 
against  the  heir  at  law  ;  Jtnd  upon  exceptions  to  his  report 
on  that  account  coming  on.  Lord  Kenyon,  then  Master  of 
the  Rolls,  overruled  them. 

It  is  not  unusual  to  require  the  heir  at  law  to  join  in  the 
conveyance,  if  his  concurrence  can  be  easily  obtained  ; 
and  where  he  is  a  party  to  a  conveyance  in  any  other 
character,  he  is  invariably  made  a  conveying  party,  in  his 
character  of  heir  at  law  ;  although  in  strictness  this  could 
not  be  insisted  upon. 

If  it  should  even  be  thought  that  a  modern  will  must  be 
proved  against  the  heir  at  law,  yet  it  seems  clear  that 
equity  would  not  compel  the  vendor,  at  the  suit  of  the 
purchaser,  to  prove  the  will  ^er  testes.  The  objection, 
therefore,  under  any  construction,  could  only  be  set  up  by 
a  purchaser,  as  a  defence  to  a  specific  performance. 


(d)  See  Fearne's  Posthuma,  234.  See  Harrison  v.  Coppard,  2 
Cox,  318,  as  to  the  custody  of  the  will. 

(c)  3  P.  Wms.  190. 

(/)  Chan.  12  June  1786,  MS.  ;  and  see  Wakeman  v.  Duchess  of 
Rutland,  3  Ves.  jun.  233  ;  8  Bro.  P.  C.  145  ;  and  Morrison  v.  Arnold, 
19  Ves.  jun.  673  ;  sed  vide  Smith  v.  Hibbard,  2  Dick.  730. 

(*370) 


A  PURCHASER  MAY  REQUIRE.  4,^^ 

Where  a  will  has  been  executed  it  must  be  produced 
l^efore  a  purchaser  can  be  compelled  to  accept  the  title, 
although  having  been  treated  as  a  nullity  by  a  profes- 
sional man  it  has  been  mislaid,  and  the  seller,  being  heir 
of  the  testator,  has  rested  upon  his  title  as  heir(^). 


As  the  law  of  descent  has  lately  been  greatly  altered, 
we  may,  perhaps,  in  this  place,  usefully  introduce  the 
Act(/i)  by  which  the  alteration  was  effected. 

(*)The  statute  enacts,  1.  That  in  every  case  descent(l) 

(g)   Stevens  v.  Guppy,  2  Sim.  &  Stu.  439. 
Ih)  3  &  4  W.  4,c.  106. 

(I)  The  word  "land"  shall  extend  to  manors,  advovvsons,  mes- 
suages, and  all  other  hereditaments,  whether  corporeal  or  incorporeal, 
and  whether  freehold  or  copyhold,  or  of  any  other  tenure,  and  whether 
descendible  according  to  the  common  law,  or  according  to  the  custom 
of  gavelkind  or  borough-english,  or  any  other  custom,  and  to  money 
to  be  laid  out  in  the  purchase  of  land,  and  to  chattels  and  other  per- 
sonal property  transmissible  to  heirs,  and  also  to  any  share  of  the 
same  hereditaments  and  properties  or  any  of  them,  and  to  any  estate 
of  inheritance,  or  estate  for  any  life  or  lives,  or  other  estate  transmissi- 
ble to  heirs,  and  to  any  possibility,  right,  or  title  of  entry  or  action,  and 
any  other  interest  capable  of  being .  inherited,  and  whether  the  same 
estates,  possibilities,  rights,  titles,  and  interests,  or  any  of  them,  shall 
be  in  possession,  reversion,  remainder,  or  contingency  ;  and  the  words 
"  the  purchaser"  shall  mean  the  person  who  last  acquired  the  land 
otherwise  than  by  descent,  or  than  by  any  escheat,  partitix)n,  or  inclo- 
sure,  by  the  effect  of  which  the  land  shall  have  become  part  of  or  de- 
scendible in  the  same  manner  as  other  land  acquired  by  descent ;  and 
the  word  "  descent"  shall  mean  the  title  to  inherit  land  by  reason  of 
consanguinity,  as  well  where  the  heir  shall  be  an  ancestor  or  collateral 
relation,  as  where  he  shall  be  a  child  or  other  issue  ;  and  the  expression 
"  descendants"  of  any  ancestor  shall  extend  to  all  persons  who  must 
trace  their  descent  through  such  ancestor  ;  and  the  expression  "  the 
person  last  entitled  to  land"  shall  extend  to  the  last  person  who  had  a 
right  thereto,  whether  he  did  or  did  not  obtain  the  possession  or  the 
receipt  of  the  rents  and  profits  thereof;  and  the  word  "assurance" 
shall  mean  any  deed  or  instrument  (other  than  a  will)  by  which  any 
land  shall  be  conveyed  or  transferred  at  law  or  in  equity  ;  and  every 

(*371) 


^^  OF  THE  TITLE  WHICH 

shall  be  traced  from  the  purchaser;  and  to  the  intent 
that  the  pedigree  may  never  be  carried  further  back  than 
the  circumstances  of  the  case  and  the  nature  of  the  title 
shall  require,  the  person  last  entitled  to  the  land  shall, 
for  the  purposes  of  this  Act,  be  considered  to  have  been 
the  purchaser  thereof  unless  it  shall  be  proved  that  he 
inherited  the  same,  in  which  case  the  person  from  whom 
he  inherited  the  same  shall  be  considered  to  have  been 
the  purchaser  unless  it  shall  be  proved  that  he  inherited 
(^)the  same ;  and  in  like  manner  the  last  person  from 
whom  the  land  shall  be  proved  to  have  been  inherited 
shall  in  every  case  be  considered  to  have  been  the  pur- 
chaser, unless  it  shall  be  proved  that  he  inherited  the 
same(i). 

2.  And  when  any  land  shall  have  been  devised,  by 
any  testator  who  shall  die  after  the  31st  day  of  Decem- 
ber 1833,  to  the  heir  or  to  the  person  who  shall  be  the 
heir  of  such  testator,  such  heir  shall  be  considered  to 
have  acquired  the  land  as  a  devisee,  and  not  by  descent ; 
and  when  any  land  shall  have  been  limited,  by  any  as- 
surance executed  after  the  said  31st  day  of  December 
1833,  to  the  person  or  to  the  heirs  of  the  person  who 
shall  thereby  have  conveyed  the  same  land,  such  person 
shall  be  considered  to  have  acquired  the  same  as  a  pur- 
chaser by  virtue  of  such  assurance,  and  shall  not  be  con- 
sidered to  be  entitled  thereto  as  his  former  estate  or  part 
thereof(/c). 

3.  And  when  any  person  shall  have  acquired  any  land 
by  purchase  under  a  limitation  to  the  heirs  or  to  the 
heirs  of  the  body  of  any  of  his  ancestors,  contained  in  an 

(i)  Sec.  2.  (k)  Sec.  3. 

word  importing  the  singular  number  only  shall  extend  and  be  applied  to 
several  persons  or  things  as  well  as  one  person  or  thing ;  and  every 
word  importing  the  masculine  gender  only  shall  extend  and  be  applied 
to  a  female  as  well  as  a  male.     Sect.  1. 
(*372) 


A  PURCHASER  MAY  REQUIRE.  4^ 

assurance  executed  after  the  said  31st  day  of  December 
1833,  or  under  a  limitation  to  the  heirs  or  to  the  heirs 
of  the  body  of  any  of  his  ancestors,  or  under  a  limitation 
having  the  same  effect,  contained  in  a  will  of  any  testator 
who  shall  depart  this  life  after  the  said  31st  day  of 
December  1833,  then  and  in  any  of  such  cases  such  land 
shall  descend,  and  the  descent  thereof  shall  be  traced  as 
if  the  ancestor  named  in  such  limitation  had  been  the  pur- 
chase?' of  such  land  (I). 

4.  No  brother  or  sister  shall  be  considered  to  inherit 
immediately  from  his  or  her  brother  or  sister,  but  every 
descent  from  a  brother  or  sister  shall  be  traced  through 
the  parent(m). 

(*)5.  And  every  li7ieal  ancestor  shaW  be  capable  of  being 
heir  to  any  of  his  issue  ;  and  in  every  case  where  there 
shall  be  no  issue  of  the  purchaser,  his  nearest  lineal 
ancestor  shall  be  his  heir  in  preference  to  any  person  who 
would  have  been  entitled  to  inherit,  either  by  tracing  his 
descent  through  such  lineal  ancestor,  or  in  consequence 
of  there  being  no  descendant  of  such  lineal  ancestor,  so 
that  the  father  shall  be  preferred  to  a  brother  or  sister, 
and  a  more  remote  lineal  ancestor  to  any  of  his  issue, 
other  than  a  nearer  lineal  ancestor  or  his  issue(?«). 

6.  And  none  of  the  maternal  ancestors  of  the  person 
from  whom  the  descent  is  to  be  traced,  nor  any  of  their 
descendants,  shall  be  capable  of  inheriting  until  all  his 
paternal  ancestors  and  their  descendants  shall  have  failed  ; 
and  also  that  no  female  paternal  ancestor  of  such  person, 
nor  any  of  her  descendants,  shall  be  capable  of  inheriting 
until  all  his  male  paternal  ancestors  and  their  descendants 
shall  have  failed ;  and  that  no  female  maternal  ancestor 
of  such  person,  nor  any  of  her  descendants,  shall  be  ca- 
pable of  inheriting  until  all  his  male  maternal  ancestors 
and  their  descendants  shall  have  failed(o). 


(/)  Sec.  4.  (m)  Sec.  5. 

(»)  Sec.  6.  (o)  Sec.  7. 


(-373) 


446  *  O^  THE  TITLE  WHICH 

7.  And  where  there  shall  be  a  failure  of  male  paternal 
ancestors  of  the  person  from  whom  the  descent  is  to  be 
traced,  and  their  descendants,  the  mother  of  his  more 
remote  7?iale  paternal  ancestor,  or  her  descendants,  shall 
be  the  heir  or  heirs  of  such  person,  in  preference  to  the 
mother  of  a  less  remote  male  paternal  ancestor,  or  her 
descendants  ;  and  where  there  shall  be  a  failure  of  male 
maternal  ancestors  of  such  person,  and  their  descendants, 
the  another  of  his  more  lemote  male  maternal  ancestor, 
and  her  descendants,  shall  be  the  heir  or  heirs  of  such 
person,  in  preference  to  the  mother  of  a  less  remote  male 
maternal  ancestor,  and  her  descendantsCi?^. 

(*)8.  And  any  person  related  to  the  person  from  whom 
the  descent  is  to  be  traced  by  the  half  blood  shall  be 
capable  of  being  his  heir ;  and  the  place  in  which  any 
such  relation  by  the  half  blood  shall  stand  in  the  order 
of  inheritance,  so  as  to  be  entitled  to  inherit,  shall  be  next 
after  any  relation  i7i  the  same  degree  of  the  whole  blood, 
and  his  issue,  where  the  common  ancestor  shall  be  a  male ; 
and  next  after  the  common  ancestor  where  such  common 
ancestor  shall  be  a  female,  so  that  the  brother  of  the  half 
blood  on  the  part  of  the  father  shall  inherit  next  after  the 
sisters  of  the  whole  blood  on  the  part  of  the  father  and 
their  issue,  and  the  brother  of  the  half  blood  on  the  part 
of  the  mother  shall  inherit  next  after  the  mother(^). 

9.  And  when  the  person  from  whom  the  descent  of  any 
laud  is  to  be  traced  shall  have  had  any  relation  who, 
having  been  attainted,  shall  have  died  before  such  descent 
shall  have  taken  place,  then  such  attainder  shall  not  prevent 
any  person  from  inheriting  such  land  who  would  have 
been  capable  of  inheriting  the  same,  by  tracing  his 
descent  through  such  relation,  if  he  had  not  been  at- 
tainted, unless  such  land  shall  have  escheated  in  conse- 

ip)  Sec.  8.  (q)  Sec.  9. 

(•*374) 


A  PURCHASER  MAY  REQUIRE,  h^^j 

quence  of  such  attainder  before  the  1st  day  of  January 
1834(r). 

10.  But  the  Act  does  not  extend  to  any  descent  which 
shall  take  place  on  the  death  of  any  person  who  shall  die 
before  the  said  1st  day  of  January  1834(5). 

And  where  any  assurance  executed  before  the  said  1st 
day  of  January  1834,  or  the  will  of  any  person  who  shall 
die  before  the  same  1st  day  of  January  1834,  shall  con- 
tain any  limitation  or  gift  to  the  heir  or  heirs  of  any 
person,  under  which  the  person  or  persons  answering  the 
description  of  heir  shall  be  entitled  to  an  estate  by  pur- 
chase, then  the  person  or  persons  who  would  have 
(*)answered  such  description  of  heir,  if  this  Act  had  not 
been  made,  shall  become  entitled  by  virtue  of  such  limi- 
tation or  gift,  whether  the  person  named  as  ancestor  shall 
or  shall  not  be  living  on  or  after  the  said  1st  day  of 
January  1834(0- 


IV.  There  is  a  serious  objection  frequently  taken  to 
titles,  which  it  may  not  be  improper  to  consider  in  this 
place. 

The  objection  to  which  I  allude  is,  that  an  equitable 
recovery  is  void  where  the  equitable  tenant  to  the  prcscipe 
has  the  legal  estate.  In  support  of  this  objection,  it  is 
urged,  that  where  the  legal  freehold  is  limited  to  one  for 
life,  with  an  equitable  remainder  to  the  heirs  of  his  body, 
the  estates  cannot  coalesce  so  as  to  make  the  parent 
tenant  in  tail,  notwithstanding  that  he  has  the  beneficial, 
and  consequently  the  equitable  estate  for  life  ;  and  there- 
fore, upon  the  same  principle,  the  legal  tenant  for  life 
cannot  be  considered  as  seised  of  an  equitable  estate,  dis- 
tinct from  his  legal  estate,  so  as  to  support  the  recovery  as 
a  good  equitable  recovery. 

In  answer  to  this  argument,  it  may  be  said,  that  the 

(r)  Sec.  10.  (s)  Sec.  11.  (<)   Sec.  12. 

(*375) 


448  O^  I'HE  TITLE  WHICH 

reason  why  the  equitable  remainder  to  the  heirs  of  the 
body  cannot  coalesce  with  the  legal  estate  for  life  is,  that 
the  rule  in  Shelly 's  case  requires  both  estates  to  be  legal. 
This  is  an  imperative  rule  of  law,  which  courts  of  equity 
can  no  more  depart  from  than  they  can  alter  the  rules  of 
descent.  Equity,  however,  follows  the  law  ;  and,  therefore, 
if  both  estates  are  equitable,  they  will  unite  in  the  same 
manner  as  if  they  were  legal  estates.  But  as  Mr.  Fearne, 
with  his  usual  ability,  observes,  when  both  the  estates 
are  not  legal,  the  application  of  a  legal  construction,  or 
operation  of  a  rule  of  law,  which  must  equally  affect  both, 
(*)seems  to  be  excluded  by  one  of  the  objects  of  that  con- 
struction not  being  a  subject  of  legal  cognizance.  So 
when  both  are  not  equitable  estates,  their  combination 
seems  to  be  out  of  the  reach  of  an  equitable  construction 
to  which  one  of  the  estates  is  not  adapted  (?<). 

Now  this  difficulty  does  not  occur  in  the  principal  case. 
The  equitable  estate  tail  has  no  existence  in  contemplation 
of  law,  but  depends  wholly  on  the  rules  of  equity  for  its 
support.  And  therefore  there  is  no  rule  of  law  which 
says  that  the  recovery  shall  be  void.  Equity,  \\ilh  re- 
spect to  equitable  recoveries,  adheres  as  nearly  as  may 
be  to  the  mode  of  barring  entails  prescribed  by  the  law. 
In  this  instance  the  analogy  is  strictly  preserved,  for  the 
tenant  to  the  prcecipe  has  the  equitable  estate  of  freehold. 
And  if  a  court  of  equity  were  to  hold  a  recovery  bad,  on 
the  ground  of  the  equitable  tenant  to  the  prcecipe  having 
the  legal  estate,  it  would  only  make  another  deed  neces- 
sary. The  tenant  for  life  would  convey  to  a  third  person 
in  trust  for  himself,  before  he  made  a  tenant  to  the  praecipe, 
and  by  this  simple  expedient  vanquish  the  objection. 

In  a  manuscript  opinion,  given  by  Mr.  Fearne,  on  this 
point,  in  which  he  held  the  recovery  to  be  good,  although 
the  equitable  tenant  to  the  prcecipe  had   the  legal  estate, 

(«)  Cont.  Remainders,  p.  78,  51h  edit. 
(*376) 


A  PURCHASER  MAY  REQUIRE.  ^^ 

he  fust  adverts  to  the  analog}'  preserved   between  legal 
and  equitable  recoveries,  and  then  proceeds  thus  :   "  The 
principle   applies  with   no  less  force,  w'here  we   suppose 
the  tenant   for  life   to  be  of  the   legal  estate,  for  his  own 
benefit.     For  ihen  the  equitable  interest  is  involved  in  the 
legal ;  and  of  consequence  all  that  is  required  bj  the  said 
rule  of  analogy  is  had  in  his  concurrence,  viz.  the  concur- 
rence of  the  person  entitled  to  the  beneficial  interest  or 
pernancy  of  the  profits  of  the  immediate  estate  of  freehold. 
If  the  concurrence  of  a  person  entitled  to  the  mere  bene- 
ficial (*)interest  of  freehold  will  answ^er  the  rule  of  analogy 
to  the  requisite  extent  for  barring  equitable  estates  tail  and 
remainders,  can  there  be  a  doubt  in  regard  to  the  compe- 
tency of  the   person  entitled  not  merely  to  that  degree  of 
interest,  but  to  a  comprehending  greater  estate,  adequate 
even  to  the  purpose  of  barring  legal  estates  and  remain- 
ders ?     The  analogy  supposes  that  a  recovery  by  an  equi- 
table  tenant  in  tail  will   bar  the  equitable  estate  tail  and 
remainders,  and  reversion,  even  where,  if  the  estate  tail 
and  remainders  had  been  legal,  such  recovery  would  not 
have  barred  them  for  w'ant  of  a  legal  tenant  to  the  prcecipe ; 
because   that  analogy  in  the  one  case  substitutes  an  equi- 
table tenant  in  the  place  of  a  legal  one  in  the  other.     Now, 
can  the  same  rule  of  analogy  ever  deny  to  a  recovery  by 
a  tenant  in  tail  of  an  equitable  estate  the  same  effect  in 
barring  his  estate   tail  and   the  subsequent  equitable  re- 
.  mainders  and   reversion,  as  it  would  have  had  if  all  those 
estates  had  been  legcd  ?     Such  a  doctrine  would   be  out- 
running the  analogy,  and  the  very  ground  for  its  adoption, 
in  disabling  those  very  persons  from    barring    equitable 
estates  tail  and   remainders,  who  might  have  barred  them 
if  they  had  been  legal  instead  of  equitable.     This  would 
scarcely  be  reconcilable  with   the  well-known  maxim  of 
cequitas  sequitur  legem. 

If  the  objection  cannot  be  supported   upon   principle, 
much  less  can  it  be  sustained   npon   authority.     On  the 

VOL.    I.  57  (*377) 


450 


OF  THE  TITLE  WHICH 


one  hand,  it  has  never  been  said  that  such  a  recovery  is 
void,  except  in  the  case  of  Shapland  v.  Smith(a:),  where 
Lord  Thurlow  is  made  to  say,  that  Christopher  had  only 
an  equitable   estate  for  life,  and   the   subsequent  estate 
being  executed,  he  had  an  equitable  estate  for  life,  and  a 
legal  remainder  in  tail,  which  could  not  unite  ;  and  of 
course  there  could  not  be  a  good  tenant  to  the  prcecipe, 
(*)and  the  recovery  suffered  was  void  ;  it  being  necessary, 
in  order  to  make  a  good  tenant  to  the  prcecipe,  that  there 
should  be  a  legal   estate  for  life,  with  a  legal  reversion  in 
tail,  or  an  equitable  estate  for    life,  with    an    equitable 
reversion  in  tail.     Upon  the  latter  dictum,  Mr.  Fearne,  in 
the  opinion  before  referred  to,  observes,  that  he  could  not 
hesitate  in  imputing  it  to  the  same  inaccuracy  or  misap- 
prehension of  the  reporter  to  which  other  unwarrantable 
positions  in  the    same    case  must,  as    he  conceived,  be 
ascribed.     That  case  came   before  the  Court  in  conse- 
quence of  his  opinion,  taken  by  the  intended  purchaser, 
in  which  he  had  objected  to  the  title  on   the   ground  of 
Shapland's  taking  only  an  equitable  estate  for  life,  and  the 
limitation  to  the  heirs  of  his  body  operating  as  a  contin- 
gent legal  remairider  to  such    heirs ;    the  equitable  and 
legal  estates   being  incapable  of  that  union  which  was 
requisite  to  vest  the  latter  at  cdl  in  him,  or  give  him  an 
estate-tail  of  any  kind.     Baron  Eyre  inclined  against  the 
objection  ;  but  on  a  re-hearing  Lord  Thurlow  admitted  it, 
and    the  insufficiency   of  the  recovery   depended,  as  he 
(Mr.  F.)  understood,  not  on  the  want  of  a  good  tenant  to 
the  prcecipe,  but  the  want  of  an  estate  tail  in  Shapland. 
And  the  report  accordingly  in   the  margin  states,  that 
it  was  not  an  estate  tail  in  C.  S.  though  the  report  itself 
makes  the  Chancellor  speak  of  it  as  a  legal  remainder 
in  tail  in  him.     Mr.  Fearne  concludes  by  saying,  that 
"  therefore  he  could  lay  no  sort  of  stress  on  any  vague 

(x)  1  Bro.  C.  C.  78. 
(*378) 


A  PURCHASER  MAY  REQUIRE.  A51 

expressions  in  such  a  report.^''  And  indeed  it  seems  clear, 
that  the  ground  of  Lord  Thurlow's  judgment  was,  the  im- 
possibility of  the  estates  uniting,  the  one  being  equitable, 
and  the  other  legal ;  and  that  his  observations  on  legal 
and  equitable  recoveries  are  mis-stated  in  the  report. 
A  slight  emendation  will  make  the  sentence,  which  refers 
to  this  doctrine,  correct.  It  may  be  read  thus  :  "  It  being 
necessary,  in  order  to  make  a  good  tenant  to  the  prcecipe, 
(*)that  there  should  be  a  legal  estate  for  life,  where  there 
is  [instead  of  with]  a  legal  reversion  in  tail ;  or  an  equita- 
ble estate  for  life,  lohere  there  is  [instead  of  with]  an  equi- 
table reversion  in  tail."  And  this  sentence,  as  corrected, 
by  no  means  implies  that  a  legal  tenant  for  life,  for  his  own 
benefit,  has  not  an  equitable  estate  for  life,  sufficient  to 
support  an  equitable  recovery. 

If  then  we  remove  this  dictum  of  Lord  Thurlow,  as  it 
stands  in  the  report,  there  is  no  authority  in  the  books  in 
support  of  the  objection.  But,  on  the  other  hand,  we 
have  Lord  Alvanley's  authority,  that  where  the  equitable 
tenant  for  life  has  also  the  legal  estate  for  life,  that  is  no 
objection  to  the  recovery.  And  this  observation  was  not 
lightly  made,  for  his  Lordship  repeated  it  in  the  course  of 
his  judgment(?/).  And  indeed  the  very  point  appears  to 
have  been  decided  in  the  16th  year  of  Charles  2d,  in  a 
case  where  a  man  was  legal  tenant  for  life  by  conveyance  ; 
and  afterwards  the  reversioner  and  ancestor  covenanted, 
in  consideration  of  blood,  to  settle  the  estate  on  him  in 
tail ;  so  that  in  equity  he  had  a  trust  in  tail  in  the  estate. 
And  the  Court  confirmed  a  recovery  suffered  by  him, 
although  at  the  time  of  suffering  it  he  was  but  tenant  for 
life  in  law  ;  and  this  although  it  was  objected  that  he  ought 
first  to  have  exhibited  his  bill,  and  have  had  his  estate  de- 
creed to  him  in  tail  according  to  the  articles(z). 

(y)  Phillips  V.  Bridges,  3  Ves.  jun.  126,  128. 

(c)   Goodrick  v.  Brown,  2  Freem.  180 ;  1  Cha.  Ca.  19. 

(*379) 


452 


OF  THE  TITLE  WHICH 


But,  even  admitting  this  objection,  it  cannot  be  ex- 
tended to  a  case  where  the  equitable  tenant  for  life,  who 
makes  the  tenant  to  the  pr<2cipe,  is  legal  tenant  in  fee. 
The  estates  are  perfectly  distinct.  He  is  not  legal  and 
equitable  tenant  for  life,  but  tenant  in  fee  of  the  legal 
estate,  and  tenant  for  life  of  the  equitable  interest(a). 

(*)This  point  is  still  important  with  reference  to  reco- 
veries already  suffered,  and  therefore  the  discussibn  may 
with  propriety  retain  its  place  in  this  treatise.  But  the 
whole  law  as  to  barring  estates  tail  is  by  a  late  statute(6) 
altered.  Fines  and  recoveries  are  abolished,  and  a  new 
mode  of  unfettering  estates  in  settlement  is  introduced. 
As  this  law  will  have  great  influence  upon  titles,  and  it 
must  be  some  time  before  its  provisions  can  be  generally 
circulatedj  it  may  not  be  improper  to  introduce  them  in 
this  place. 

By  the  Act  referred  to,  fines  and  recoveries  are 
abolished  after  the  31st  Decenjber  1833  ;  and(c)  persons 
bound  after  that  day  by  agreement  to  levy  a  fine  or  suffer 
a  recovery,  are  enabled  to  perform  their  contract  without 
actually  levying  the  one  or  suffering  the  other.  The 
Act  then  gives  validity  to  recoveries,  although  the  bargain 
and  sale  to  make  the  tenant  to  the  prcecipe  was  not 
enrolled  in  due  time(f?)  :  and  no  recovery(e)  is  to  be 
invalid  in  consequence  of  any  person  having  a  legal 
estate  not  having  joined  in  making  the  tenant  to  the 
prcecipe,  provided  the  tenant  shall  have  been  made  by 
a  person  who  had  an  estate  in  possession  not  less  than 
for  a  life,  in  the  rents  or  surplus  after  payment  of  charges 
thereon,  and  whether  there  be  any  actual  surplus  or  not ; 
and  an  estate  is  to  be  deemed  to  be  in  possession  notwith- 
standing any  prior  leases  for  lives  or  years  at  a  rent,  or  any 

(a)    Marwood  v.  Turner,  3  P.  Wms.  171. 

(6)  3  &  4  W.  4,  c.  74.  (c)   Sec.  3. 

(rf)   Sec.  10.  (c)   Sec.  11. 

(*380) 


I 


A  PURCHASER  MAY  REQUIRE.  453 

term  of  years  without  rent.  But  this  is  confined  by  cer- 
tain exceptions  in  the  Actff).  The  object  of  these  ex- 
cellent provisions  is  to  render  valid  recoveries  already  suf- 
fered. 

The  Act  then  avoids(^)  all  warranties  by  tenant  in 
tail  against  the  issue  in  tail  and  persons  in  remainder. 

(*)The  Act  then(^)  provides,  that  after  the  31st  De- 
cember 1833,  every  actual  tenant  in  tail,  whether  in  pos- 
session, remainder,  contingency  or  otherwise,  shall  have 
power  to  dispose  of  for  an  estate  in  fee-simple  absolute, 
or  for  any  less  estate,  the  lands  entailed,  saving  the 
rights  of  persons  in  respect  of  estates  prior  to  the  estate 
tail.  But  women  who  are  seised  in  tail  under  existing 
settlements  ex  provisione  viri  are  prevented  from  exer- 
cising such  power  of  disposition  without  the  assent  now 
required  by  law  ;  but  as  to  future  settlements,  the  Act  of 
11  H.  7,  c.  20,  is  repealed.  But  the  power  of  disposi- 
tion(t)  is  prevented  from  extending  to  tenants  in  tail 
within  the  34  k,  35  H.  8,  or  wiio  by  any  other  Act  are 
restrained  from  barring  their  estates  tail,  or  to  tenants  in 
tail  after  possibility  of  issue  extinct. 

In  like  manner(A:)  after  the  31st  December  1833, 
power  is  given  to  the  persons  who  would  have  been 
tenants  in  tail  if  the  entail  had  not  been  barred  and  con- 
verted into  a  base  fee,  to  dispose  of  the  lands  so  as  to  en- 
large the  base  fee  into  a  fee-simple  absolute,  but  not  to  af- 
fect prior  estates.  But(/)  the  Act  is  not  to  enable  any 
issue,  in  respect  of  his  hope  of  succession,  to  dispose  of 
the  entailed  property. 

The  Act  then(m)  makes  a  disposition  by  a  tenant  in 
tail,  by  way  of  mortgage  or  for  any  other  limited  pur- 
pose, an  absolute  bar  in  equity  and  law  to  the  extent  of 

(/)   Sec.  12.  (g)   Sec.  14. 

{h)  Sec.  15.  (/)   Sec.  18. 

(k)  Sec.  19  ;  and  see  sec.  39.         (/)  Sec.  20. 
(ju)   Sec.  21. 

(*381) 


454  ^^  "^^^  TITLE   WHICH 

the  estate  created,  against  all  persons  who  under  the  Act 
can  be  barred,  notwithstanding  any  intention  to  the  con- 
trary may  be  expressed  or  implied  in  the  deed.  But 
notwithstanding  any  intention,  where  only  an  estate  pour 
auter  vie,  or  for  years,  or  an  interest,  charge,  lien  or  in- 
cumbrance without  a  term  of  years,  or  any  greater  estate 
(*)shall  be  created,  the  same  shall  in  equity  be  a  bar  only 
so  far  as  may  be  necessary  to  give  full  effect  to  the  mort- 
gage or  charge. 

As  the  old  tenant  to  the  prcecipe  could  not  be  reserved 
under  the  new  plan,  the  Act  proceeds  to  create  a  Protector 
of  every  settlement,  whose  concurrence  in  barring  estates 
tail  in  remainder  is  required,  in  order  to  preserve,  under 
certain  modifications,  the  control  of  the  tenant  for  life  over 
the  remainder-men. 

With  this  view,  it  is  enacted (n),   that   if  at  the  time 
when  there  shall  be   a  tenant  in  tail  under  a  settlement, 
there   shall    be    under    the   same   settlement  any   estate 
for  years  determinable  on  a  life,  or  any  greater  estate 
(not  being  an  estate  for  years)  prior   to  the   estate  tail, 
then  the  owner  of  the  prior  or  first  estate,  or  who  would 
have  been  so  if  no  absolute  disposition  thereof  had  been 
made,  shall  be  the  protector  of  the  settlement,  and  shall, 
for  the  purposes  of  the  Act,  be  deemed  the  owner  of 
such  prior   estate,   although    the  same   may  have   been 
charged  or  incumbered,   and  although  all   the  rents  be 
exhausted  or  required  for  the    payment  of   the  incum- 
brances on  such   prior  estate,   and  although  such  prior 
estate  may   have   been   absolutely   disposed    of   by  the 
owner,  or  by  his  bankruptcy  or   insolvency,  or  by  any 
other  act  or  default  of  such  owner.     An  estate  by  the 
curtesy  in  respect  of  the  estate  tail,  or  of  any  prior  estate 
created  by  the  same  settlement,  is  to  be  deemed  a  prior 
estate,  and  a  resulting  use  or  trust  to  or  for  the  settlor  is 
to  be  deemed  an  estate  under  the  same  settlement. 

(«)  Sec.  22. 

(*382) 


A  PURCHASER  MAY  REQUIRE.  455 

Provisions  are  then  made(o)  for  making  each  owner 
of  an  undivided  share  the  protector  of  such  share,  and(p) 
for  making  the  husband  and  wife  the  protector  in  respect 
of  her  prior  estate,  unless  her  estate  shall  by  the  settlement 
(*)have  been  settled  or  agreed  to  be  settled  to  her  sepa- 
rate use,  in  which  case  she  alone  is  to  be  the  protector ; 
but  it  is  provided((/),  that  a  lease  at  a  rent  created  or  con- 
firmed by  a  settlement  shall  not  make  the  owner  of  it  the 
protector,  nor(?')  shall  any  woman  in  respect  of  her 
dower,  nor  any  bare  trustee,  heir,  executor,  administrator, 
or  assign,  be  the  protector,  but  in  such  cases(5)  the  per- 
son who  if  such  estate  did  not  exist  would  be  the  pro- 
tector shall  be  such. 

But  where  before  the  31st  December  1833,  an  estate 
under  settlement  shall  have  been  disposed  of,  either  for 
valuable  consideration  or  not,  the  person  who  in  respect 
of  such  estate  would,  if  the  Act  had  not  been  passed, 
have  been  the  proper  person  to  make  the  tenant  to  the 
prcecipe,  shall,  during  the  continuance  of  such  estate, 
be  the  protector  of  such  settlement ;  and  the  Act  pro- 
vides(i)  for  the  case  of  a  disposition  of  a  remainder  or 
reversion  in  fee  on  or  before  the  31st  December  1833, 
and  preserves  to  a  bare  trustee  under  any  existing  set- 
tlement, who  would  have  been  the  proper  person  to  make 
the  tenant  to  the  precipe,  the  right  as  the  protector  of 
such  settlement(w). 

Power  is  given(a:),  under  certain  restrictions,  to  every 
settlor  to  appoint  protectors  of  his  settlement ;  and  the 
Act  substitutes(i/)  the  Lord  Chancellor  in  the  place  of  a 
protector  who  shall  be  a  lunatic,  and  the  Court  of  Chan- 


Co)  Sec.  23.  (p)  Sec.  24. 

(q)  Sec.  26  ;  and  see  sec.  26.  (r)  Sec.  27. 

(s)  Sec.  28.  {I)   Sec.  30. 

(k)   Sec.  31.  (.r)   Sec.  32. 

(i/)  Sec.  33,  &  sec.  48,  49. 

(*383) 


J^^Q  OF  THE  TITLE  WHICH 

eery  in  the  place  of  a  protector  who  shall  be  convicted 
of  treason  or  felony,  or  of  a  protector,  not  being  the 
owner  of  a  prior  estate,  who  shall  be  an  infant,  or  where 
it  shall  be  uncertain  whether  such  last-mentioned  person 
be  living  or  dead.  The  Court  of  Chancery  is  also  substi- 
tuted (*)where  the  settlor  declares  that  the  person  who  as 
owner  of  a  prior  estate  under  such  settlement,  would 
be  entitled  to  the  protector  shall  not  be  such  protector, 
and  does  not  appoint  any  protector  in  his  stead.  And 
also  in  every  other  case  where  there  shall  be,  under 
a  settlement,  a  prior  estate  sufficient  to  qualify  a  protec- 
tor, and  there  shall  happen  to  be  no  protector,  the  Court 
of  Chancery  is  to  be  the  protector. 

Having  thus  provided  who  shall  be  the  protector,  the 
Act  then  proceeds  to  declare  in  what  cases  his  concur- 
rence shall  be  necessary. 

No  actual  tenant  in  tail(2),  not  having  the  remainder 
or  reversion  in  fee  immediately  expectant  on  his  estate 
tail,  under  a  settlement  where  there  is  a  protector,  can 
dispose  of  the  estate  to  the  full  extent  authorized  by  the 
Act,  without  the  consent  of  the  protector,  but  he  may 
without  such  consent  dispose  of  the  estate  against  all 
persons  who  by  force  of  any  estate  tail  which  shall  be 
vested  in  or  might  be  or  have  been  claimed  by  him,  shall 
claim  the  lands.  And(«)  although  the  estate  be  converted 
into  a  base  fee,  yet  as  long  as  there  is  a  protector  of  the 
settlement,  his  consent  is  requisite  to  the  power  of  dispo- 
sition given  by  the  Act. 

The  power  of  the  protector  to  consent  is  made  absolute ; 
his  discretion  is  absolute  and  uncontrollable  even  by  a 
court  of  equity.  Nor  can  his  giving  his  consent  be  deemed 
a  breach  of  trust(6).  Nor  are  the  rules  of  equity  in  rela- 
tion to  dealings  and  transactions  between  a  donee  of  a 

(s)   Sec.  34.  (a)  Sec.  35.  (6)  Sec.  36. 

(*384) 


I 


A  PURCHASER  MAY  REQUIRE.  A57 

■power  and  any  object  of  the  power  in  whose  favor  the 
same  may  be  exercised,  to  apply  to  this  case(c). 

If  a  base  fee  and  the  remainder  or  reversion  in  fee  be 
united  in  the  same  person,  and  there  shall  be  no  inter- 
mediate (*)estate  between  them,  the  base  fee  shall  heipso 
facto  enlarged  into  as  large  an  estate  as  the  tenant  in  tail, 
with  the  consent  of  the  protector,  might  have  created 
under  the  Act,  if  such  remainder  or  reversion  had  been 
vested  in  any  other  person(r/). 

The  Act  then  proceeds  to  provide  by  what  conveyances 
a  tenant  in  tail  shall  convey.  Every  disposition  is  to  be 
effected  by  some  one  of  the  assurances  (not  being  a  will) 
by  which  such  tenant  in  tail  could  have  made  the  dis- 
position of  his  estate  if  a  fee-simple  absolute  ;  but  it  must 
be  made  or  evidenced  by  deed.  No  disposition  by  a  ten- 
ant in  tail,  resting  only  in  contract  either  express  or  impli- 
ed or  otherwise,  and  whether  supported  by  a  valuable  or 
meritorious  consideration  or  not,  shall  be  of  any  force, 
nothwithstanding  such  disposition  shall  be  made  by  deed. 
And  the  concurrence  of  the  husband  of  every  married 
woman  being  a  tenant  in  tail,  is  made  necessary(e). 

The  protector  is  authorized  to  give  his  consent  by  the 
same  assurance  which  effects  the  disposition,  or  by  a  se- 
parate instrument.  If  given  by  a  separate  instrument,  it 
is  to  be  deemed  an  unqualified  consent,  unless  the  partic- 
ular assurance  is  referred  to,  and  his  consent  confined  to 
that  disposition.  After  having  given  his  consent,  he  can- 
not revoke  'it(f).  A  married  woman  being  a  protector, 
either  alone  or  jointly  with  her  husband,  may  consent  as 
a  feme  sole. 

The  dispositions  and  consents  are  not  to  operate  un- 
less valid  in  law,  for  the  jurisdiction  of  equity  is  altoge- 
ther excluded(^). 


(c)  Sec.  37. 

(d)   Sec.  39. 

(c)    Sec.  40. 

(/)  Sec.  42,  43,  44,  45. 

(g-)  Sec.  47. 

VOL.   I. 

58 

(*385) 

458 


OF  THE  TITLE  WHICH 


Copyholds  are  within  the  Act,  but  surrenders  are  to  be 
made  by  legal  tenants  in  tail,  and  surrenders  or  deeds  to 
be  made  or  executed  by  equitable  tenants  in  tail(/t). 
And  the  mode  in  which  the  protectors  are  to  consent  is 
(*)particulaily  pointed  out(z)  ;  but  it  is  provided,  that 
every  deed  by  which  copyholds  are  disposed  of  by  an 
equitable  tenant  in  tail,  shall  be  void  against  any  person 
claiming  such  lands  for  valuable  consideration,  under  any 
subsequent  assurance  duly  entered  on  the  court  rolls, 
unless  the  deed  by  the  equitable  tenant  be  entered  on 
the  rolls  before  the  subsequent  assurance  shall  have  been 
entered. 

The  Act  then  alters  the  laws  as  to  bankrupt  tenants  in 
tail,  and  gives  to  the  Commissioners  a  power  to  alien 
upon  the  basis  of  the  provisions  in  the  Act,  in  favor  of 
solvent  tenants  in  tail(A:). 

And  it  also  repeals  the  law  for  relieving  persons  en- 
titled to  entailed  estates  to  be  purchased  with  trust- 
monies,  and  applies  to  the  estates  to  be  sold  and  the 
monies  to  be  invested  (which  are  treated  as  if  they  were 
the  lands  to  be  purchased)  the  general  provisions  of  the 
Act(0. 

The  Act  then(m)  contains  a  provision  of  great  impor- 
tance. Every  married  woman  not  being  tenant  in  tail,  is 
enabled  by  deed  to  dispose  of  lands  of  any  tenure,  and 
money  subject  to  be  invested  in  lands,  and  also  to  dis- 
pose of,  release,  surrender,  or  extinguish  any  estate  which 
she  alone,  or  she  and  her  husband  in  her  right,  may  have 
in  lands  of  any  tenure,  or  in  any  such  money  ;  and  also  to 
release  or  extinguish  any  power  which  may  be  vested  in 
or  limited  or  reserved  to  her  in  regard  to  any  lands  of  any 
tenure,  or  in  any  such  money,  as  effectually  as  if  she  were 
a  feme  sole  ;  but  her  husband  must  concur,  and  the  deed 

(h)  Sec.  50  &  53.      (i)   Sec.  51,  62,  53.      (A)  Sec.  55.  to  sec.  69. 

(/)  Sec.  70,  71.  (m)  Sec.  77. 

(*386) 


A  PURCHASER  MAY  REQUIRE.  ^^g 

uiList  be  acknowledged  in  tlie  manner  required  by  the 
Act,  and  the  provision  is  not  to  extend  to  copyholds  in 
cases  where  the  power  is  not  required. 

The  Act  also  contains  provisions  as  to  lands  in  ancient 
(*)demesne,  renders  amendments  of  fines  and  recoveries 
unnecessary,  points  out  the  manner  in  w^hich  deeds,  con- 
sents and  assurances  are  to  be  inroUed,  and  contains  cer- 
tain provisions  in  favor  of  purchasers,  which  latter  provi- 
sions will  be  found  in  their  proper  place  in  this  work(/i). 

The  sweeping  away  of  fines  and  recoveries  is  a  solid 
improvement  in  the  law,  and  the  Act  of  parliament  is  a 
masterly  performance,  and  reflects  great  credit  on  the 
learned  conveyancer  by  whom  it  was  framed.  But  the 
policy  of  the  provisions  in  the  Act  may  be  doubted. 
AH  men's  titles  must  for  many  years  depend  upon  the 
law  of  fines  and  recoveries  ;  and  few  will  be  found  in 
a  short  time  competent  to  judge  of  their  validity.  The 
substitute  for  the  old  law  is  one  of  vast  complication,  in- 
troducing a  protector  in  every  settlement  to  check  the 
alienation  by  tenant  in  tail  in  remainder.  Whilst  we 
brush  away  our  old  books,  no  one  can  doubt  that  the  new 
system,  from  its  complication,  will  lay  the  foundation 
for  new  ones,  and  that  the  construction  of  the  Act  in 
every  given  case  will  not  be  settled  but  after  a  long  run 
of  litigation,  although  no  doubt,  at  first,  every  thing  will 
.l)roceed  smoothly.  The  Author  was  one  of  those  who 
thought  that  tlie  law  would  have  been  more  simple  if  it 
had  merely  abolished  fines  and  recoveries,  and  made 
deeds  to  declare  the  uses  of  fines,  and  to  make  tenants 
to  the  prcecipe  in  recoveries  effectual  without  actually 
levying  a  fine  or  suffering  a  recovery. 

The  Act  has  effected  an  important  alteration  in  the  law, 
by  making  the  tenant  for  life  continue  to  be  the  protector 
of  a  settlement  even  after  he  has  sold  the  estate,  or  it  has 

(n)  Infra,  ch.  16,  s.  7. 

(*387) 


4(30         -  '■^^^  '^"1^^  TITLE  WHICUl 

passed  from  him  by  bankruptcy  or  insolvency.  This 
appears  to  be  unwise.  For  the  Act  takes  away  the  con- 
trol of  equity  over  the  protector  ;  declares  that  his  discre- 
tion (*)is  absolute ;  that  he  cannot  commit  a  breach  of 
trust ;  and  that  the  doctrines  of  equity  applicable  to  a  do- 
nee of  a  power  dealing  with  an  object  of  the  power  are 
not  to  be  applied  to  him.  He  may,  therefore,  make  what 
bargain  he  pleases  with  the  tenant  in  tail  after  the  natu- 
ral check  (for  such  the  possession  of  the  first  estate  may 
fairly  be  considered)  has  been  conveyed  away.  In  the 
case  of  a  bankrupt,  he  may  acquire  a  great  property  as 
against  his  creditors,  and  a  case  may  occur  in  which  he 
may  by  his  concurrence  enable  the  first  tenant  in  tail  to 
bar  a  subsequent  remainder  vested  by  his  bankruptcy  in 
his  own  assignees. 


V.  It  so  often  becomes  necessary  to  consider  in  what 
cases  an  uninterrupted  possession  creates  a  title,  that  the 
introduction  of  a  iew  general  observations  on  the  opera- 
tion of  the  statutes  of  limitations,  may  not  be  deemed 
impertinent. 

1.  Then  the  statutes  of  limitations  operate  by  way  of 
bar  to  the  remedy,  and  not,  like  the  statutes  of  fines,  as  a 
bar  to  the  right(o).  Therefore,  although  a  person  is 
barred  of  one  remedy,  yet  he  may  pursue  any  other  re- 
medy which  may  afterwards  accrue  to  him.  Thus,  where 
a  tenant  in  tail  discontinued  for  three  lives,  and  the  issue 
in  tail  was  barred  of  his  fqrmedon  by  the  21  Jac.  ^-(p)  ; 
afterwards  by  the  death  of  the  three  tenants  for  life, 
a  right  of  entry  accrued  to  the  issue,  who  entered,  and  his 
entry  was  held  lawful(9'). 

(o)  See  Beckford  v.  Wade,  17  Ves.  jun.  87. 
(p)  Ch.  16. 

\q)  Hunt  I'.  Bourne,  Lutw.  781  ;  2  Salk.  422  ;   Corn.  124  ;    1  Bro. 
P.  C.  63. 

(*38S) 


A  PURCHASER  MAY  REQUIRE.  ^(^J 

2.  It  has  frequently  been  thought  that  the  rights  of 
infants,  femes  covert,  persons  in  prison,  and  beyond  sea, 
are  saved  by  the  act  of  32  Hen.  8.(r)  ;  but  on  examin- 
ation (*)it  will  appear,  that  the  savings  extended  only  to 
persons  who  labored  under  any  of  those  disabilities  at 
the  time  the  statute  was  made(s'),  (I). 

3.  The  saving  clause  in  the  act  of  James(II)  only  ex- 
tends to  the  persons  on  whom  the  right  first  decends  ; 
and  therefore,  when  the  time  once  begins  to  run,  nothing 
can  stop  it(i)(217).  So  that  on  the  death  of  a  person  in 
whose  life  the  time  first  began  to  run,  his  heir  must  enter 
within  the  residue  of  the  ten  years,  although  he  labored 
under  a  disability  at  the  death  of  his  ancestor. 

In  the  late  case  of  Cotterell  v.  DuUon(u),  a  tenant  in 
tail  died,  leaving  the  issue  in  tail  a  feme  covert  who  died 
under  coverture  and  left  issue  two  sons,  both  infants  ;  the 
eldest  attained  twenty-one  and  died  without  issue,  leaving 

(»•)   Ch.  2. 

(s)  See  Bro.  Reading,  p.  60. 

{t)  Doe  V.  Jones,  4  T.  Rep.  300  ;  Cotterell  v.  Dutton,  4  Taunt.  826. 

(m)  4  Taunt.  826. 


(I)  In  even  the  last  edition  of  Bacon's  Abridgment,  it  is  stated  gen- 
erally, that  the  act  of  32  Hen.  VITI.  hath  the  usual  saving  for  infants, 
femes  covert,  persons  in  prison,  and  beyond  the  sea. 

(II)  JVole,  Dublin,  or  any  other  place  in  Ireland,  is  a  place  within  the 
meaning  of  the  saving  of  the  rights  of  persons  beyond  the  seas.     Anon. 

1  Show.  90. 

(217)   See  Boiv  v.  Warren,   6  Mass.  Rep.  328.     Bunce  v.  Wolcott, 

2  Conn.  Rep.  27.  Griswold  v.  Butler,  3  Conn.  Rep.  227.  and  see 
Biish  V.  Bradley,  4  Day,  298.  Sanford  v.  Butlon,  4  Day,  310.  See 
also,  Pech  v.  Randall,  1  Johns.  Rep.  165.     HaWsLies.  v.  Vandegriff, 

3  Binn.  374.  Demurest  v.  IVijncoop,  3  Johns.  Ch.  Rep.  129.  Jf'al- 
den  V.  Gratz'  heirs,  1  "Wheat.  292,  296.  Hudson  v.  Hudson,  6  Munf. 
352.  Denv.  Mulford,  1  Hayw.  311.  .Inon.  Id.  416.  Pearce  v. 
House,  2  Tayl.  305.  Faijsoux  v.  Prather,  1  Nott  &  M'Cord,  296. 
-Rdamson  v.  Smith,  2  Rep.  Con.  Ct.  269.  Eager  v.  The  Common- 
wealth, 4  Mass.  Rep.  182.     Mooers  v.  White,  6  Johns.  Ch.  Rep.  372. 

(*389) 


462 


OF  THE  TITLE  WHICH 


his  brother  under  age,  who  did  not  sue  forth  his  writ  of 
formedon  within  ten  years  after  he  attained  twenty-one, 
and  more  than  twenty  years  had  elapsed  after  the  right 
had  first  descended.  It  was  held  that  he  was  barred  by 
the  statute.  The  ground  of  this  decision  was,  that  the 
time  began  to  run  against  the  eldest  son  when  he  at- 
tained twenty-one,  and  no  subsequent  disability  could 
stop  it ;  therefore  he  and  his  heirs  had  only  ten  years 
from  his  attainment  of  twenty-one.  This  case  overruled 
a  notion  which  had  been  entertained  by  some,  that  issue 
in  tail  have  distinct  and  successive  rights  under  the 
statute,  and  were  not  to  be  barred  like  the  heirs  of  fee- 
simple  estates.  This,  however,  was  decided  otherwise. 
(*)Mr.  Justice  Heath  said,  that  there  was  no  such  differ- 
ence between  the  issue  in  tail  and  other  heirs,  as  was  sup- 
posed ;  formedon  in  the  descender  was  expressly  men- 
tioned in  the  first  clause  of  the  statute  :  and  the  point 
was  expressly  decided  in  the  same  way  in  the  later  case 
of  Tolson  V.  Kaye(.r). 

In  the  case  of  a  fine,  it  was  formerly  thought,  that  if  a 
person  died  under  a  disability,  his  heir  was  excepted  out 
of  the  statute  of  fines,  by  the  proviso(i/)  ;  although  the 
contrary  has  been  determined  by  a  modern  case(2^).  In 
the  statute  of  James,  the  Legislature  being  aware  of  this 
point,  expressly  provided  for  the  death  of  the  person  to 
whom  the  Jirst  right  should  descend  ;  and,  therefore, 
where  a  person  to  whom  the  right  first  descended,  dies 
under  a  disability,  his  heir  must  enter  within  ten  years 
after  his  death(«)(218). 

(x)  3  Brod.  &  Bing.  217. 

[y)  See  Cruise  on  Fines,  258,  and  the  cases  there  cited. 

(z)  Dillon  V.  Leman,  2  11.  Black.  684. 

(a)   Sec  Jenkins,  4  Cent.  pi.  97  ;  Doe  v.  Jesson,  6  East,  80. 

(218)  See  Sniilk  v.  Biulls,  9  Johns.  Rep.  181.     Demarcst  v.  fVtjn- 
cooj),  3  Johns.  Ch.  Rep.  136,  137. 
(*390) 


A  PURCHASER  MAY  REQUIRE.  ^go 

In  the  case  of  Doe  v.  Jesson(6),  the  person  upon  whom 
the  right  first  descended  was  presumed  to  have  died  in 
1785,  under  a  disability,  leaving  his  heir  also  under  a 
disability.  The  disability  ceased  in  1792,  but  the  eject- 
ment was  not  brought  till  1804;  more  than  twenty  years 
had  elapsed  since  the  death  of  the  person  last  seised, 
and  more  than  ten  years  had  elapsed  after  the  cesser 
of  the  disability  of  the  plaintiff;  and  the  Court  deter- 
mined that  the  ejectment  was  out  of  time.  Lord  Ellen- 
borough  held  that  the  person  through  whom  the  lessor  of 
the  plaintiff  claimed,  being  under  a  disability  at  his 
father's  death,  when  his  title  first  accrued,  and  dying 
under  that  disability,  the  proviso  in  the  second  clause  of 
the  statute  (where  resort  is  to  be  had  to  it,  to  extend  the 
period  for  making  an  entry  beyond  the  twenty  years) 
(*)required  the  lessor  of  the  plaintiff,  as  heir  to  her  brother, 
to  make  her  entry  within  ten  years  after  his  death.  The 
word  death  in  that  clause  must  mean  and  refer  to  the 
death  of  the  person  to  whom  the  right  first  accrued,  and 
whose  heir  the  claimant  is,  and  the  statute  meant  that  the 
heir  of  every  person,  to  which  person  a  right  of  entry 
had  accrued  during  any  of  the  disabilities  there  stated, 
should  have  ten  years  from  the  death  of  his  ancestor,  to 
\Ahom  the  right  first  accrued  during  the  period  of  dis- 
ability, and  who  died  under  such  disability  (notwith- 
standing the  twenty  years  from  the  first  accruing  of  the 
title  to  the  ancestor  should  have  before  expired).  Mr. 
Justice  Lawrence  also  gave  his  opinion  that  the  ten  years 
to  the  heir  run  from  the  death  of  the  party  dying  under 
the  disabilit3\ 

It  will  appear  that  it  was  not  necessary  for  the  Court 
to  decide  from  what  period  the  ten  years  should  run ;  for 
more  than  ten  years  had  elapsed  from  the  time  the  heir 
who  brought  the  ejectment  attained  twenty-one,  when 

(6)  6  East,  80. 

(*391) 


^g^  OF  THE  TITLE  WHICH 

her  disability  ceased.  In  the  late  case  of  Cotterell  v. 
Duttoii(c),  where  this  doctrine  was  stated,  the  Court  was 
of  opinion  that  the  heir  has  ten  years  after  the  disability 
ceases,  not  from  the  death  of  the  ancestor  who  died  under 
a  disability.  "  The  ten  years  do  not  run  at  all  while  there 
is  a  continuance  of  disabilities"(219).  This  certainly 
appears  to  be  the  true  construction  of  the  statute,  and  it 
is  the  construction  which  has  invariably  been  adopted  in 
practice. 

It  seems  that  where  no  account  can  be  given  of  a  per- 
son within  the  exceptions  in  the  Act,  he  will  be  presumed 
to  be  dead  at  the  expiration  of  seven  years  from  the  last 
account  of  him(6?). 

The  disability  of  one  coparcener  will  not  preserve  the 
(*)title  of  the  other,  who  must  enter  within  twenty  years 
after  the  title  accrues,  although  during  the  whole  time 
her  coparcener  labored  under  a  disability(e)(220). 

4.  It  is  generally  conceived,  that  a  possession  for  sixty 
years  creates  a  good  title  against  all  the  world.  Thus 
Judge  Jenkins^/)  lays  it  down,  without  qualification, 
"  that  a  peaceable  possession  for  sixty  years  makes  a 
right;  for  21  Jac.  1.  c.  16,  takes  away  the  entry  and 
assize ;  32  Hen.  8,  takes  away  the  writ  of  right  and 
the  formedon."  So  Mr.  Justice  Blackstone  says(o-),  "  that 
the  possession  of  lands  in  fee-simple  and  uninterruptedly 
for  sixty  years,  is  at  present  a  sufficient  title  against  all 

(c)  4  Taunt.  826. 

(d)  Doe  V.  Jesson,  uhi  sup. 

(e)  Roe  V.  Rowlston,  2  Taunt.  441. 
(/)    1  Cent.  pi.  49. 

{g)  3  Com.  196. 

(219)  See  Jackson  v.  Sellick,  8  Johns.  Rep.  202.  2d  edit. 

(220)  See  Sanford  v.  Button,  4  Day,  310.  The  rule  is  the  same  in 
respect  to  tenants  in  common.  Doolitth  v.  Blakesley,  4  Day,  265, 465. 
Bi-yan  v.  Hinman,  5  Day,  211.     See  Riden  v.  Frion,  2  Murph.  577. 

(*392) 


A  PURCHASER  MAY  REQUIRE.  ^5 

til!.'  world,  and  cannot  be  impeached  by  any  dormant 
claim  whatsoever"(221).  This,  however,  Mr.  Christian 
remarks,  in  a  note  to  the  above  passage,  is  far  from  being 
universally  true ;  for  an  uninterrupted  possession  for 
sixty  years  will  not  create  a  title,  where  the  claimant  or 
demandant  had  no  right  to  enter  within  that  time  ,•  as 
where  an  estate  in  tail,  for  life,  or  for  years,  continues 
above,  sixty  years,  still  the  reversioner  may  enter  and 
recover  the  estate. 

Perhaps  this  remark  is  not  sufficiently  pointed.  Black- 
stone  certainly  did  not  mean,  that  the  lawful  possession, 
during  sixty  years,  of  a  tenant  in  tail,  for  life,  or  for  years, 
would  operate  as  a  bar  to  the  reversioner's  title,  but  he 
alluded  to  a  clear  adverse  possession  for  sixty  years. 

However,  even  in  this  light,  his  position  admits  of  ex- 
ceptions. It  is  possible  that  an  estate  may  be  enjoyed 
adversely  for  hundreds  of  years,  and  may  at  last  be  re- 
covered by  a  remainder-man.  For  instance,  suppose  an 
estate  to  be  limited  to  one  in  tail,  with  remainder  over  to 
another  in  fee,  and  the  tenant  in  tail  to  be  barred  of  his 
(*)remedy  by  the  statutes  of  limitations,  it  is  evident  that, 
as  his  estate  subsists,  the  remainder-man's  right  of  entry 
cannot  take  place  until  the  failure  of  issue  of  the  tenant 
in  tail,  which  may  not  happen  for  an  immense  number  of 
years. 

This  doctrine  is  illustrated  by  the  great  case  of  Taylor 
i\  Horde(/i),  where  an  estate  was  settled  on  several  per- 
sons successively  in  tail ;  remainder  to  A.  in  fee  ;  and  one 
of  the  remainder-men  in  tail,  being  out  of  possession, 
brought  an  ejectment,  which  was  held  to  be  barred  by  the 
statute  of  limitations.  Afterwards  all  the  tenants  in  tail 
died  without  issue,  and  the  then  heir  at  law  of  A.  brought 
an    ejectment,    within  twenty  years  from  the  time    his 

{h)   1  Burr.  60  ;   5  Bro.  P.  C.  247  ;   Cowper,  689. 


(221)   ^ee  Morris'  Les.  v.  randeren,  1  Dall.  G7. 

VOL.   I.  59  (*.393) 


466 


OF  THE  TITLE  WHICH 


remainder   fell    into   possession,    and    he   recovered   the 
estate(222). 

6.  After  passing  the  act  of  32  Henry  8,  and  before 
that  of  the  21  Jac.  1,  although  a  man  had  been  out  of 
possession  of  land  for  sixty  years,  yet  if  his  entry  was  not 
tolled,  he  might  enter  and  bring  an  action  of  his  own  pos- 
session («).  Some  writers  have  thought  this  still  to  be 
law(A;),  but  the  rule  in  this  respect  was  altered  by  the 
statute  of  James;  by  which  no  person  can  now  eiiter 
except  within  twenty  years  after  his  title  accrues. 

6.  The  rule  in  equity,  that  the  statute  of  limitations 
does  not  bar  a  trust-estate,  holds  only  as  between  cestui 
que  trust  and  trustee,  not  between  cestui  que  trust  and 
trustee  on  one  side,  and  strangers  on  the  other(223) ;  for 
that  would  be  to  make  the  statute  of  no  force  at  all,  be- 
cause there  is  hardly  an  estate  of  consequence  without 
such  a  trust,  and  so  the  act  would  never  take  place. 

Therefore,  where  a  cestui  que  trust  and  his  trustee  are 
(*)both  out  of  possession  for  the  time  limited,  the  party 
in  possession  has  a  good  bar  against  both(/)(224). 

7.  Although  the  statute  cannot,  as  between  the  trustee 
and  cestui  que  trust,  operate  as  a  bar  to  the  latter,  yet  the 

(i)  See  Bevill's  case,  4  Co.  lib. 

(h)  See  Wood's  Inst.  657  ;  and  Christian's  note  to  3 Black.  Com.  196. 

(/)  Per  Lord  Hardwicke,  in  casu  Llewellyn  v.  Mackworth,  Barnard. 
Rep.  Cha.  445  ;  16  Vin.  Abr.  125,  n.  to  pi.  1  ;  and  see  Townsend  v. 
Townsend,  1  Bro.  C.  C.  550 ;  Clay  v.  Clay,  3  Bro.  C.  C.  639,  n. ; 
Ambl.  645  ;  Hercy  v.  Ballard,  4  Bro.  C.  C.  469 ;  and  Harmood  u. 
Oglander,  6  Yes.  jun.  199  ;  8  Ves.  jun.  106  ;  Hovenden  v.  Lord  An- 
nesley,  2  Scho.  &  Lef.  629. 

(222)  See  Jackson  \.  Schoonmaker,  4  Johns.  Rep.  390.  402,  HalVs 
Les.  V.  Vandegrift,  3  Binn.  374. 

(223)  See  Wamburzee  v.  Kennedy,  4  Des.  474.  Decouche  v.  Save- 
tier,  3  Johns.  Ch.  Rep.  190.  Goodrich  v.  Pendleton,  3  Johns.  Ch. 
Rep.  384. 

(224)  See  Decouche  v.  Saveiier,  3  Johns.  Ch.  Kep.  216.  Goodrich 
V.  Pendleton,  3  Johns.  Ch.  Rep.  390.     Gist  v.  Cattell,  2  Des.  53. 

(*394) 


A  PURCHASER  MAY  REQUIRE.  ^g-y 

trustee  may,  in  some  cases,  be  barred  by  the  possession 
of  the  cestui  que  trusty  or  those  claiming  mider  him(77i), 
A  cestui  que  trust  is  as  a  tenant  at  will  to  the  trustee,  and 
his  possession  is  the  possession  of  the  trustee(?i)  ;  and 
therefore,  unless  under  very  particular  circumstances,  time 
could  not  operate  as  a  bar(o).  Where  a  cestui  que  trust 
sells  or  devises  the  estate,  and  the  vendee  or  devisee 
obtains  possession  of  the  title-deeds,  and  enters,  and  does 
no  act  recognising  the  trustee's  title,  there  is  great  reason 
to  contend  that  this  is  a  disseisin  of  the  trustee,  and,  con- 
sequently, that  the  statute  will  operate  from  the  time  of 
such  entry.  This  is  a  point  which  daily  occurs  in  prac- 
tice ;  but  it  rarely  happens,  that  a  purchaser  can  be  ad- 
vised to  dispense  with  the  conveyance  of  a  legal  estate, 
where  the  defect  will  appear  on  the  abstract  when  he 
sells.  And  where  there  has  been  any  dealing  on  the  legal 
estate,  and  it  has  been  recently  noticed  in  the  title-deeds 
as  a  subsisting  interest,  it  is  clear  that  a  purchaser  must 
consider  it  as  such(j9). 

8.  The  statutes  of  limitations  certainly  cannot  operate 
as  between  cestuis  que  trust ;  but  it  seems  that  equity,  in 
(*)analogy  to  the  statute,  will  hold  time  a  har(q)  ;  and 
indeed  that  equitable  rights  in  general  will,  by  the  like 
analogy,  be  affected  by  time  in  the  same  manner  as  legal 
estates(r)(225). 

(m)  See  Lord  Portsmouth  v.  Lord  Effingham,  1  Ves.  430  ;  Har- 
mood  V.  Oglander,  6  Ves.  jun.  199;  8  Ves.  jun.  106.  See  2  Mer. 
360. 

(n)  See  1  Ventr.  329. 

(o)  See  3  Mod.  149 ;  Earl  of  Pomfret  v.  Lord  Windsor,  2  Ves. 
472  ;  Keene  v.  Deardon,  8  East,  248 ;  Smith  v.  King,  16  East,  283. 

(p)  See  Goodtitle  v,  Jones,  7  Term  Rep.  47. 

{q)   See  Harmood  v  Oglander,  ubi  stip. 

(r)  See  1  Atk.476  ;  and  Stackhouse  v.  Barnston,  10  Ves.  jun.  466  ; 

(225)  See  Arden  v.  Ardcn,  1  Johns.  Ch.  Rep.  313.  Decouchc  v. 
Savdicr,  3  Johns.  Ch.  Rep.  190. 

(*395) 


^gg  OF  THE  TITLE  WHICH 

This  is  exemplified,  in  some  degree,  by  the  rules  re- 
specting an  equity  of  redemption,  which  is  a  mere  creature 
of  the  Court(5). 

In  Clay  v.  Clay(^),  Lord  Camden  laid  down  this  doc- 
trine very  clearly.  He  said,  "  as  often  as  Parliament  has 
limited  the  time  of  actions  and  remedies,  to  a  certain  pe- 
riod, in  legal  proceedings,  the  Court  of  Chancery  adopt- 
ed that  rule,  and  applied  it  to  similar  cases  in  equity (226). 
For  when  the  Legislature  has  fixed  the  time  at  law,  it 
would  have  been  preposterous  for  equity  (which  by  its 
own  proper  authority  always  maintained  a  limitation)  to 
countenance  laches  beyond  the  period  that  law  had  been 
confined  to  by  Parliament.  And  therefore,  in  all  cases 
where  the  legal  right  has  been  barred  by  Parliament,  the 
equitable  right  to  the  same  thing  has  been  concluded  by 
the  same  bar." 

In  Beckford  v.  Wade(w),  Sir  William  Grant,  in  deli- 
vering judgment,  said,  that  it  is  certainly  true  that  no 
time  bars  a  direct  trust  as  between  cestui  que  trust  and 
trustee  ;  but  if  it  was  meant  to  be  asserted  that  a  court 
of  equity  allows  a  man  to  make  out  a  case  of  constructive 
trust,  at  any  distance  of  time  after  the  facts  and  circum- 
stances (*)happened  out  of  which  it  arises,  he  was  not 
aware  that  there  was  any  ground  for  a  doctrine  so  fatal 
to  the  security  of  property  as  that  would  be  ;  so  far  from 
it,  that  not  only  in  circumstances  where  the  length  of  time 
would  render  it  extremely  difficult  to  ascertain  the  true 

Hovenden  v.  Lord  Annesley,  2  Scho.  &  Lef.  630  ;  Lord  Egremont 
v.  Hamilton,  1  Ball  &  Beatty,  516. 

(s)  White  V.  Ewer,  2  Ventr.  340 ;  Pearson  r.  Pulley,  1  Cha.  Ca. 
109  ;  Jenner  v.  Tracey,  and  Belch  v.  Harvey,  3  P.  Wms.  287,  n. 
See  a  full  note  of  this  case,  Appendix,  No.  16. 

(t)  3  Bro.  C,  C.  639,  n.  ;  Ambl.  645  ;  and  see  Ex  parte  Dewdney, 
15  Ves.  jun.  496  ;  Medlicott  v.  O'Donel,  1  Ball  &  Beatty,  156. 

(u)   17  Ves.  jun.  97.     See  2  Hargr.  Jur.  Exc.  p.  394. 


(226)   See  Demarestv.  Wijncoop,  3  Johns.  Ch.  Rep.  129. 

(*396) 


A  PURCHASER  MAY  REQUIRE.  ^gg 

state  of  the  fact,  but  where  the  true  state  of  the  fact  is 
easily  ascertained,  and  where  it  is  perfectly  clear  that 
relief  would  originally  have  been  given  upon  the  ground 
of  constructive  trUst,  it  is  refused  to  the  party  who,  after 
long  acquiescence,  comes  into  a  court  of  equity  to  seek 
that  relief(227). 

And  it  seems  that  even  in  cases  of  fraud,  where  the 
facts  constituting  the  fraud  are  known,  where  there  is  no 
subsisting  trust  or  continuing  influence,  the  same  princi- 
ple will  apply  (a:)  (228.) 

It  was  held  by  Sir  William  Grant,  that  whilst  the 
equity  of  redemption  subsists,  the  question  to  whom  it 
belongs  must  remain  open  :  and  therefore  mere  possession 
without  title  would  not  give  any  person  a  right  to  re- 
deem(3/)(229).  The,right  belonged  to  him  who  showed  a 
title,  although  he  had  been  out  of  possession  upwards  of 
twenty  years.  But  Sir  Thomas  Plumer  decided  other- 
wise, and  his  decision  was  affirmed  in  the  House  of 
Lords(z),  And  it  seems  that  unless  in  the  case  of  dis- 
ability, twenty  years  adverse  possession  is  a  bar  to  relief 
in  equity(a). 

The  legal  provisions  have  been  so  strictly  adhered  to, 
that  persons  laboring  under  any  of  the  disabilities  spe- 
cified in  the  statute  of  limitations,  have  been  allowed  the 

{x)   1  Ball  &  Beatty,  166. 
{y)  Cholniondeley  r.  Clinton,  2  Mer.  173. 

(z)  2  Jac.  &  Walk.  1,  189  n.  ;  and  see  Tweddell  v.  Tweddell,  1 
Turner,  11, 12. 

(a)  See  Price  v.  Copner,  1  Sim.  &  Stu.  347. 


(227)  See  Gist  v.  CalteWs  heirs,  2  Des.  53,  65.  Wamhurzee  v. 
Kennedy,  4  Des.  474,  479.  Spotsn'ood  v.  Dundridge,  4  Hen.  &  Munf. 
139.     Redu'ood  v.  Reddick,  4  Munf.  225. 

(228)  See  Wamburzee  v.  Kennedy,  4  Des.  479,  Cook  v.  Darby,  4 
Munf.  444. 

(229)  See  Grant  v.  Duanc,  9  Johns.  Rep.  591.  on  appeal. 


470 


OF  THE  TITLE  WHICH 


same  as  they  would  be  entitled  to  in  the  case  of  a  legal 
claim(6)(230). 

(*)9.  These  observations  may  be  closed  by  observing, 
that  few  cases  occur  in  which  a  title  depending  on  the 
statute  of  limitations  can  be  recommended.  The  bare 
receipt  of  rent  is  no  ouster,  for  it  is  a  contradiction  in 
terms,  that  a  man  by  wrong  should  have  my  right(c)  ; 
so  the  non-payment  of  rent  is  no  ouster,  and  therefore  the 
operation  of  the  statute  must  frequently  be  prevented  by 
the  existence  of  a  lease  granted  by  the  person  whose  in- 
terest, or  the  interest  of  persons  claiming  under  him,  is 
wished  to  be  barred.  So(c^)  there  may  be  a  case  where 
the  circumstance  of  concealing  a  deed  shall  prevent  the 
statute  from  barring  ;  but  then  it  must  be  a  voluntary  and 
fraudulent  detaining ;  for  to  say  that  merely  having  an 
old  deed  in  one's  possession  shall  deprive  a  man  of  the 
benefit  of  the  act,  is  going  too  far,  and  would  be  a  harsh 

(6)  Lytton  v.  Lytton,  2  Bro.  C.  C.  441.  Two  cases  on  this  point  were 
for  a  long  time  depending,  Pimm  v.  Goodwin,  before  Lord  Eldon,  and 
Blake's  case  before  Lord  Manners,  in  Ireland.  See  2  Mer.  240 ; 
Blake  v.  Foster,  2  Ball  &  Beat.  565  ;  Harrison  v.  HoUins,  1  Sim.  & 
Stu.  471. 

(c)  Gilb.  Ten.  97.  See  ace.  Goodright  v.  Jones,  Cruise  on  Fines, 
3d  edit.  295  ;  Doe  v.  Danvers,  7  East,  299  ;  and  see  Orrell  v.  Mad- 
dox,  Runnington's  Eject.  458  ;  Saunders  v.  Lord  Annesley,  2  Scho.  & 
Lef.  73.  See  and  consider  Hovenden  v.  Lord  Annesley,  2  Scho.  & 
Lef.  623. 

(d)  Per  Lord  Hardwicke  in  casu  Llewellyn  v.  Mackworth,  Barnard. 
Rep.  Cha.  445  ;  15  Vin.  Abr.  126,  pi.  8 ;  2  Eq.  Ca.  Abr.  679,  pi.  9  ; 
and  see  Dormer  v.  Parkhurst,  3  Atk.  124.     See  also  Snell  v.  Silcock, 

5  Ves.  jun.  469  ;  Bowles  v.  Stewart,   1   Schoale's  &  Lefroy's  Rep. 
209  ;  Bond  v.  Hopkins,  ib.  413  ;  Hovenden  v.  Lord  Annesley,  2  Scho. 

6  Lef.  607. 

(230)  The  construction  of  the  statute  of  limitations  is  the  same  in 
equity  as  at  law.  See  Demarest  v.  Wyncoop,  3  Johns.  Ch.  Rep.  129, 
139.     Lamar  v.  Jones,  3  Har.   &  M'Hen.  329.     Kane  v.  Bloodgood, 

7  Johns.  Ch.  Rep.  90. 

(*397) 


A  PURCHASER  MAY  REQUIRE.  4-7 1 

construction  of  a  statute  made  for  the  quieting  of  pos- 
sessions. 


Thus  the  law  stood  before  the  late  important  Act  of 
3  &.  4  Wil.  4,  c.  27.  It  is  seldom  possible  to  understand 
a  law  which  repeals  a  former  one  and  substitutes  new 
provisions,  unless  we  have  a  competent  knowledge  of  the 
law  repealed.  It  has,  therefore,  independently  of  the 
(*)savings  in  the  Act,  been  thought  useful  to  retain  the 
foregoing  short  account  of  the  old  law  as  a  fit  introduc- 
tion to  the  new  one. 

By  the  Act  referred  to  it  is  enacted,  that  after  the  31st 
day  of  December  1833,  no  person  shall  make  an  entry  or 
distress  or  bring  an  action  to  recover  any  land  or  rent,  but 
within  tiventy  years  next  after  the  time  at  which  the 
right  to  make  such  entry  or  distress  or  to  bring  such 
action  shall  have  first  accrued  to  some  person  through 
whom  he  claims  ;  or  if  such  right  shall  not  have  accrued 
to  any  person  through  whom  he  claims,  then  ivithin  twenty 
years  next  after  the  time  at  which  the  right  to  make  such 
entry  or  distress  or  to  bring  such  action  shall  have  first 
accrued  to  the  person  making  or  bringing  the  same(I). 

(I)  The  words  and  expressions  hereinafter  mentioned,  which  in 
their  ordinary  signification  have  a  more  confined  or  a  different  mean- 
ing, shall  in  this  Act,  except  where  the  nature  of  the  provision  or 
the  context  of  the  Act  shall  exclude  such  construction,  be  interpreted 
as  follows  ;  (that  is  to  say,)  the  word  "  land"  shall  extend  to  manors, 
messuages,  and  all  other  corporeal  hereditaments  whatsoever,  and  also 
to  tithes  (other  than  tithes  belonging  to  a  spiritual  or  eleemosynary 
corporation  sole),  and  also  to  any  share,  estate,  or  interest  in  them  or 
any  of  them,  whether  the  same  shall  be  a  freehold  or  chattel  interest, 
land  whether  freehold  or  copyhold,  or  held  according  to  any  other 
tenure  ;  and  the  word  "  rent"  shall  extend  to  all  heriots,  and  to  all 
services  and  suits  for  which  a  distress  may  be  made,  and  to  all  annui- 
ties and  periodical  sums  of  money  charged  upon  or  payable  out  of  any 
land  (except  moduses  or  compositions  belonging  to  a  spiritual  or 
eleemosynary  corporation  sole)  ;  and  the  person  through  whom  another 

(*398) 


^^2  OF  THE  TITLE  WHICH 

(*)Aiid  it  is  enacted,  that  in  the  construction  of  the  Act 
the  right  to  make  an  entry  or  distress  or  bring  an  action 
to  recover  any  land  or  rent  shall  be  deemed  to  have  first 
accrued  at  such  time  as  hereinafter  is  mentioned  ;  (that  is 
to  say) 

1.  When  the  person  claiming  such  land  or  rent,  or 
some  person  through  whom  he  claims,  shall,  in  respect 
of  the  estate  or  interest  claimed,  have  been  in  possession 
or  in  receipt  of  the  profits  of  such  land,  or  in  receipt  of 
such  rent,  and  shcdl  while  entitled  thereto  have  been  dis- 
possessed, or  have  discontinued  such  possession  or  receipt, 
then  such  right  shall  be  deemed  to  have  j^r5^  accrued  at 
the  time  of  such  dispossession  or  discontinuance  of  pos- 
session, or  at  the  last  time  at  which  any  such  profits  or 
rent  were  or  was  so  received. 

2.  And  when  the  person  claiming  such  land  or  rent  shall 
claim  the  estate  or  interest  of  some  deceased  person  ivho 
shall  have  continued  in  such  possession  or  receipt  in  respect 
of  the  same  estate  or  interest  until  the  time  of  his  death, 
and  shall  have  been  the  last  person  entitled  to  such  estate 
or  interest  who  shall  have  been  in  such  possession  or  re- 
ceipt, then  such  right  shall  be  deemed  to  have  first 
accrued  at  the  time  of  such  death. 


person  is  said  to  claim  shall  mean  any  person  by,  through,  or  under,  or 
by  the  act  of  whom,  the  person  so  claiming  became  entitled  to  the 
estate  or  interest  claimed,  as  heir,  issue  in  tail,  tenant  by  the  curtesy 
of  England,  tenant  in  dower,  successor,  special  or  general  occupant, 
executor,  administrator,  legatee,  husband,  assignee,  appointee,  devisee, 
or  otherwise,  and  also  any  person  who  was  entitled  to  an  estate  or  in- 
terest to  which  the  person  so  claiming,  or  some  person  through  whom 
he  claims,  became  entitled  as  lord  by  escheat ;  and  the  word  "  person" 
shall  extend  to  a  body  politic,  corporate,  or  collegiate,  and  to  a  class 
of  creditors  or  other  persons,  as  well  as  an  individual  ;  and  every  word 
importing  the  singular  number  only  shall  extend  and  be  applied  to 
several  persons  or  things  as  well  as  one  person  or  thing ;  and  every 
word  importing  the  masculine  gender  only  shall  extend  and  be  applied 
to  a  female  as  well  as  a  male  ;  sect.  1. 
(*399) 


A  PURCHASER  MAY  REQUIRE.  ^^3 

3.  And  when  the  person  chiiming  such  land  or  rent  shall 
claim  in  respect  of  an  estate  or  interest  in  possession 
granted,  appointed,  or  otherwise  assured  by  any  instrument 
(other  than  a  will)  to  him,  or  some  person  though  whom 
he  claims,  by  a  person  being  in  respect  of  the  same  estate 
or  interest  in  the  possession  or  receipt  of  the  profits  of  the 
land,  or  in  the  receipt  of  the  rent,  cmd  no  person  entitled 
under  such  instrument  shall  have  been  in  such  possession 
or  receipt,  then  such  right  shall  be  deemed  to  have  frst 
(*)accrued  at  the  time  at  which  the  person  claiming  as 
aforesaid,  or  the  person  through  whom  he  claims,  be- 
came entitled  to  such  possession  or  receipt  by  virtue  of 
such  instrument. 

4.  And  when  the  estate  or  interest  claimed  shall  have 
been  an  estate  or  interest  in  reversion  or  remainder,  or 
other  future  estate  or  interest,  and  no  person  shall  have 
obtained  the  possession  or  receipt  of  the  profits  of  such  land 
or  the  receipt  of  such  rent  in  respect  of  such  estate  or 
interest,  then  such  right  shall  be  deemed  to  have  first 
accrued  at  the  time  at  which  such  estate  or  interest  be- 
came an  estate  or  interest  in  possession. 

5.  And  when  the  person  claiming  such  land  or  rent,  or 
the  person  through  whom  he  claims,  shall  have  become 
entitled  by  reason  of  any  forfeiture  or  breach  of  condition, 
then  such  right  shall  be  deemed  to  have  first  accrued 
when  such  forfeiture  was  incurred  or  such  condition  was 
broken  (e). 

6.  But  when  any  right  to  make  an  entry  or  distress 
or  to  bring  an  action  to  recover  any  land  or  rent  by 
reason  of  any  forfeiture  or  breach  of  condition  shall  have 

first  accrued  in  respect  of  any  estate  or  interest  in  rever- 
sion or  remainder,  and  the  land  or  rent  shall  not  have 
been  recovered  by  virtue  of  such  right,  the  right  to  make 
an  entry  or  distress  or   bring  an  action   to   recover  such 

{e)    Sec.  3. 

VOL.    I.  60  (*400) 


474 


OF  THE  TITLE  WHICH 


land  or  rent  shall  be  deemed  to  have  first  accrued  in 
respect  of  such  estate  or  interest  at  the  time  when  the 
same  shall  have  become  an  estate  or  interest  in  posses- 
sion, as  if  no  such  forfeiture  or  breach  of  condition  had 
happened  (/^. 

7.  And  a  right  to  make  an  entry  or  distress  or  to  bring 
an  action  to  recover  any  land  or  rent  shall  be  deemed  to 
have  first  accrued,  in  respect  of  an  estate  or  interest  in 
(*)reversion,  at  the  time  at  which  the  same  shall  have  be- 
come an  estate  or  interest  in  possession  by  the  determi- 
nation of  any  estate  or  estates  in  respect  of  which  such 
land  shall  have  been  held,  or  the  profits  thereof  or  such 
rent  shall  have  been  received,  notwithstanding  the  per- 
son claiming  such  land,  or  some  person  through  vvhain 
he  claims,  shall,  at  any  time  previously  to  the  creation 
of  the  estate  or  estates  which  shall  have  determined, 
have  been  in  possession  or  receipt  of  the  profits  of  such 
land,  or  in  receipt  of  such  rent,  so  that  the  remainder- 
man is  not  bound  to  enter  for  a  forfeiture  until  his  estate 
fall  into  possession,  nor  is  his  right  affected  by  a  posses- 
sion by  him,  or  any  person  through  whom  he  claims,  pre- 
viously to  the  creation  of  the  estate  which  shall  have  de- 
term  in  ed(g). 

8.  An  administrator  shall  be  deemed  to  claim  as  if 
there  had  been  no  interval  of  time  between  the  death  of 
such  deceased  person  and  the  grant  of  the  letters  of  ad- 
ministration(/i). 

9.  And  when  any  person  shall  be  in  possession  or  in 
receipt  of  the  profits  of  any  land,  or  in  receipt  of  any  rent, 
as  tenant  at  will,  the  right  of  the  person  entitled  sub- 
ject thereto,  or  of  the  person  through  whom  he  claims,  to 
make  an  entry  or  distress  or  bring  an  action  to  recover 
such  land  or  rent  shall  be  deemed  to  have  first  accrued 
either  at  the  determination  of  such  tenancy,  or  at  the  ex- 

(/)  Sec.  4.  (g-)   Sec.  5.  {h)  Sec.  6. 

(*401 ) 


A  PURCHASER  MAY  REQUIRE.  ^y^ 

piratioii  of  one  year  next  after  the  commencement  of  such 
tenancy,  at  which  time  such  tenancy  shall  be  deemed  to 
have  determined  :  provided  that  no  mortgagor  or  cestui 
que  trust  shall  be  deemed  to  be  a  tenant  at  will  to  his 
mortgagee  or  trustee(i). 

10.  And  when  any  person  shall  be  in  possession  or  in  re- 
ceipt of  the  profits  of  any  land,  or  in  receipt  of  aay  (*)rent, 
as  tenant  from  year  to  year  or  other  period,  without 
any  lease  in  writing,  the  right  of  the  person  entitled  sub- 
ject thereto,  or  of  the  person  through  whom  he  claims,  to 
make  an  entry  or  distress  or  to  bring  an  action  to  recover 
such  land  or  rent  shall  be  deemed  to  have  first  accrued  at 
the  determination  of  the  first  of  such  years  or  other 
periods,  or  at  the  last  time  when  any  rent  payable  in  re- 
spect of  such  tenancy  shall  have  been  received  (which 
shall  last  happen)(y). 

11.  And  when  any  person  shall  be  in  possession  or  in 
receipt  of  the  profits  of  any  land,  or  in  receipt  of  any 
rent,  by  virtue  of  a  lease  in  writing,  by  which  a  rent 
amounting  to  the  yearly  sum  of  205.  or  upwards  shall 
be  reserved,  and  the  rent  reserved  by  such  lease  shall 
have  been  received  by  some  person  wrongfully  claiming 
to  be  entitled  to  such  land  or  rent  in  reversion  immedi- 
ately expectant  on  the  determination  of  such  lease,  and 
DO  payment  in  respect  of  the  rent  reserved  by  such  lease 
shall  afterwards  have  been  made  to  the  person  rightfully 
entitled  thereto,  the  right  of  the  person  entitled  to  such 
land  or  rent,  subject  to  such  lease,  or  of  the  person 
through  whom  he  claims,  to  make  an  entry  or  distress  or 
to  bring  an  action  after  the  determination  of  such  lease 
shall  be  deemed  to  have  first  accrued  at  the  time  at 
which  the  rent  reserved  by  such  lease  was  first  so  re- 
ceived by  the  person  wrongfully  claiming  as  aforesaid ; 
and  no  such  right  shall  be  deemed  to  have  first  accrued 

(/)   Soc.  7.  (j)  Sec.  b. 

(*402) 


h'jQ  OF  THE  TITLE  \VHICri 

upon  the  determination  of  such  lease  to  the  person  right- 
fullj  entit]ed(A;). 

The  Act  then  takes  away  constructive  possession 
merely  by  reason  of  having  made  an  entry,  and  destroys 
the  effect  of  continual  claim  in  preserving  any  right,  and 
provides  that  the  possession  of  one  coparcener,  joint 
(*)tenant  or  tenant  in  common,  shall  not  be  deemed  to 
have  been  the  possession  of  the  others(/). 

And  it  is  enacted,  that  the  possession  of  a  younger 
brother  or  other  relation  of  the  heir  shall  not  be  deemed 
to  be  the  possession  of  the  heir  himself(wi). 

But  that  when  any  acknowledgment  of  the  title  of 
the  person  entitled  to  any  land  or  rent  shall  have 
been  given  to  him  or  his  agent  in  writing  signed  by 
the  person  in  possession  or  in  receipt  of  the  profits  of 
such  land,  or  in  receipt  of  such  rent,  then  such  posses- 
sion or  receipt  of  or  by  the  person  by  whom  such  ac- 
knowledgment shall  have  been  given  shall  be  deemed  to 
have  been  the  possession  or  receipt  of  or  by  the  person 
to  whom  or  to  whose  agent  such  acknowledgment  shall 
have  been  given  at  the  time  of  giving  the  same,  and  the 
right  of  such  last-mentioned  person,  or  any  person  claim- 
ing through  him,  to  make  an  entry  or  distress  or  bring 
an  action  to  recover  such  land  or  rent  shall  be  deemed  to 
have  first  accrued  at  the  time  at  which  such  acknow- 
ledgment, or  the  last  of  such  acknowledgments  was 
given  (n). 

And  it  is  provided,  that  when  no  such  acknowledg- 
ment shall  have  been  given  before  the  passing  of  the 
Act,  and  the  possession  or  receipt  of  the  profits  of  the 
land,  or  the  receipt  of  the  rent,  shall  not  at  the  time  of 
the  passing  of  the  Act  have  been  adverse  to  the  right  or 
title  of  the  person  claiming  to  be  entitled  thereto,  then 


(k)   Sec,  9.  (/)   Sec.  ]0,  11,  12. 

(m)   Sec.  13.  (n)   Sec.  14. 


(*403) 


A  PURCHASER  MAY  REQUIRE.  4,^7 

such  person,  or  the  person  claiming  through  him,  may, 
notwithstanding  the  period  of  twenty  years  before  limited 
shall  have  expired,  make  an  entry  or  distress  or  bring  an 
action  to  recover  such  land  or  interest  at  any  time  within 
five  years  next  after  the  passing  of  the  Act(o). 

(*)And  if  at  the  time  at  which  \h.e  right  of  any  person 
to  make  an  entry  or  distress  or  bring  an  action  to  recover 
any  land  or  rent  shall  have  first  accrued  as  aforesaid 
such  person  shall  have  been  under  any  of  the  disabilities 
hereinafter  mentioned,  (that  is  to  say,)  infancy,  coverture, 
idiotcy,  lunacy,  unsoundness  of  mind,  or  absence  beyond 
seas,  then  such  person,  or  the  person  claiming  through 
him,  may,  notwithstanding  the  period  of  twenty  years 
before  limited  shall  have  expired,  make  an  entry  or 
distress  or  bring  an  action  to  recover  such  land  or  rent 
at  any  time  within  ten  years  next  after  the  time  at  which 
the  person  to  whom  such  right  shall  first  have  accrued  as 
aforesaid  shall  have  ceased  to  be  under  any  such  disabi- 
lity, or  shall  have  died  (which  shall  have  first  hap- 
pened) (p). 

But  even  in  case  of  disabilities,  no  action  can  be 
brought  but  within  forty  years  next  after  the  time  at 
which  such  right  shall  have  first  accrued,  although  the 
allowed  term  of  ten  years  shall  not  have  expired(^). 
Nor  is  any  time  beyond  the  period  of  twenty  years,  or  the 
period  of  ten  years  allowed  by  reason  of  any  disability  of 
any  other  person,  or  in  other  words,  a  succession  of  dis- 
abilities does  not  extend  the  time(r). 

No  part  of  Great  Britain  and  Ireland,  nor  the  islands 
of  Man,  Guernsey,  Jersey,  Alderney,  or  Sark,  nor  any 
island  adjacent  to  any  of  them  (being  part  of  the  domi- 
nions of  his  Majesty),  shall  be  deemed  to  be  beyond  seas 
within  the  meaning  of  the  Act(5). 

(o)  Sec.  15.  (p)   Sec.  l(j. 

iq)   Sec.  17.  (r)    Sec.  18. 

*    (s)  Sec.  19. 


478 


OF  THE  TITLE  WHICH 


The  Act  then  provides  that  in  certain  cases  the  bar 
shall  operate  as  well  against  other  estates  of  the  claimant 
as  against  those  in  remainder: 

1.  When  the  right  to  an  estate  in  possession  is  l^rred 
(*)by  the  lapse  of  time,  and  such  person  shall  at  anj  time 
during  the  said  period  have  been  entitled  to  any  other 
estate,  interest,  right  or  possibility,  in  reversion,  remain- 
der or  otherwise,  in  or  to  the  same  land  or  rent,  no  entry, 
distress  or  action  shall  be  made  or  brought  by  such  per- 
son, or  any  person  claiming  through  him,  to  recover  such 
land  or  rent,  in  respect  of  such  other  estate,  interest,  right 
or  possibility,  unless  in  the  mean  time  such  land  or  rent 
shall  have  been  recovered  by  some  person  entitled  to  an 
estate,  interest  or  right  which  shall  have  been  limited  or 
taken  effect  after  or  in  defeasance  of  such  estate  or  inte- 
rest in  possession (^). 

2.  And  when  the  right  of  a  tenant  in  tail  shall  have 
been  barred  by  reason  of  the  same  not  having  been  made 
or  brought  within  the  period  before  limited,  no  entry, 
distress  or  action  shall  be  made  or  brought  by  any  person 
claiming  any  estate,  interest  or  right  which  such  tenant 
in  tail  might  lawfully  have  barred(w). 

3.  And  when  a  tenant  in  tail  shall  have  died  before 
the  expiration  of  the  period  before  limited,  no  person 
claiming  any  right  which  such  tenant  in  tail  might  law- 
fully have  barred  shall  make  an  entry  or  distress  or  bring 
an  action  but  within  the  period  during  which,  if  such 
tenant  in  tail  had  so  long  continued  to  live  he  might  have 
made  such  entry  or  distress  or  brought  such  action(.T). 

4.  And  when  a  tenant  in  tail  shall  have  made  an  assur- 
ance which  shall  not  operate  to  bar  an  estate,  to  take  effect 
after  or  in  defeasance  of  his  estate  tail,  and  any  person 
shall  by  virtue  of  such  assurance,  at  the  time  of  the 
execution  thereof,  or  at  any  time  afterwards,  be  in  posses- 

(0  Sec.  20.  (w)   Sec.  21.  {x)  Sec.  22. 

(-*405) 


A  PURCHASER  MAY  REQUIRE.  \^q 

sion  or  receipt  of  the  profits  of  such  land,  or  in  the  re- 
ceipt of  such  rent,  and  the  same  person,  or  any  other 
person  whatsoever  (other  than  some  person  entitled  to 
(*)such  possession  or  receipt  in  respect  of  an  estate  which 
shall  have  taken  effect  after  or  in  defeasance  of  the  estate 
tail),  shall  continue  or  be  in  such  possession  or  receipt  for 
the  period  of  twenty  years  next  after  the  commencement 
of  the  time  at  which  such  assurance,  if  it  had  then  been 
executed  by  such  tenant  in  tail  or  the  person  who  would 
have  been  entitled  to  his  estate  tail  if  such  assurance  had 
not  been  executed,  would,  without  the  consent  of  any 
other  person,  have  operated  to  bar  such  estate  or  estates 
as  aforesaid,  then  at  the  expiration  of  such  period  of 
twenty  years  such  assurance  shall  be  effectual  as  against 
any  person  claiming  any  right  to  take  effect  after  or  in 
defeasance  of  such  estate  tail(^). 

It  is  then  enacted,  that  after  the  said  31st  day  of  De- 
cember 1833  suits  in  equity  shall  be  confined  to  the  pe- 
riod allowed  for  actions  at  law(z).  And  when  any  land  or 
rent  shall  be  vested  in  a  trustee  upon  any  express  trust,  the 
right  of  the  cestui  que  trust,  or  any  person  claiming  through 
him,  to  bring  a  suit  against  the  trustee,  or  any  person 
claiming  through  him,  to  recover  such  land  or  rent,  shall 
be  deemed  to  have  first  accrued  at  and  not  before  the 
time  at  which  such  land  or  rent  shall  have  been  conveyed 
to  a  purchaser  for  a  valuable  consideration,  and  shall  then 
be  deemed  to  have  accrued  only  as  against  such  pur- 
chaser and  any  person  claiming  through  him(«).  But  in 
every  case  of  a  concealed  fraud  the  right  of  any  person 
to  bring  a  suit  in  equity  for  the  recovery  of  any  land 
or  rent  of  which  he,  or  any  person  through  whom  he 
claims,  may  have  been  deprived  by  such  fraud,  shall  be 
deemed  to  have  first  accrued  at  and  not  before  the  time 
at  which  such  fraud   shall  or  with  reasonable  diligence 


'b'^ 


(ij)  Sec.  23.  (z)  Sec.  24.  (a)   Sec.  25. 

(*406) 


480 


OF  THE  TITLE  WHICH 


might  have  been  first  known  or  discovered  ;  provided 
that  nothing  in  this  clause  contained  shall  enable  any 
owner  of  lands  or  rents  to  have  a  suit  in  equity  for  the 
(*)recovery  of  such  lands  or  rents,  or  for  setting  aside  any 
conveyance  of  such  lands  or  rents,  on  account  of  fraud, 
against  any  bona  fide  purchaser  for  valuable  consideration 
who  has  not  assisted  in  the  commission  of  such  fraud,  and 
who  at  the  time  that  he  made  the  purchase  did  not  know 
and  had  no  reason  to  believe  that  any  such  fraud  had  been 
committed(6). 

And  it  is  provided,  that  nothing  in  the  Act  contained 
shall  be  deemed  to  interfere  with  any  rule  or  jurisdiction 
of  courts  of  equity  in  refusing  relief  on  the  ground  of 
acquiescence  or  otherwise  to  any  person  whose  right  to 
bring  a  suit  may  not  be  barred  by  virtue  of  this  Act(c). 

The  existing  rule  as  to  mortgagees  in  possession  is  then 
adopted.  The  mortgagor  is  to  be  barred  at  the  end  of 
twenty  years  from  the  time  of  taking  possession  or  from 
the  last  written  acknowledgment ;  and  when  there  shall 
be  more  than  one  mortgagor,  such  acknowledgment,  if 
given  to  any  of  such  mortgagors,  or  his  or  their  agent, 
shall  be  effectual ;  but  where  there  shall  be  more  than  one 
mortgagee,  such  acknowledgment,  signed  by  one  or 
more  of  such  mortgagees,  shall  be  effectual  only  as 
against  the  party  or  parties  signing  as  aforesaid  ;  and 
where  such  of  the  mortgagees  as  shall  have  given  such 
acknowledgment  shall  be  entitled  to  a  divided  part  of  the 
land  or  rent  comprised  in  the  mortgage,  or  some  interest 
therein,  and  not  to  any  ascertained  part  of  the  mortgaged 
money,  the  mortgagor  or  mortgagors  shall  be  entitled  to 
redeem  the  same  divided  part  of  the  land  or  rent  on  pay- 
ment, with  interest,  of  the  part  of  the  mortgage  money 
which  shall  bear  the  same  proportion  to  the  whole  of  the 
mortgage  money  as  the  value  of  such  divided  part  of  the 

(b)   Sec.  26.  (c)   Sec.  27. 

(*407) 


A  PURCHASER  MAY  REQUIRE.  ^01 

laud  or  rent  sh;ill  bear  to   tiie  value  of  the  whole  of  the 
laud  or  rent  comprised  in  the  mortgage(<:/). 

(*)The   Act  then  passes  to  church  property.      It  prohi- 
bits any  spiritual  or  eleemosynary  corporation^  sole  from 
recovering  unless  within  two  incumbencies  and  six  years 
after  a  third   person  shall  have  been  appointed,  or  within 
sixty  years  if   those  periods  shall    net  amount    to  sixty 
years(e).     And  it  enacts,  that  no  advowson  shall  be  reco- 
vered after  the  expiration  of  the  period  during  which  three 
clerks    in    succession  shall    have  held    the  same,  all    of 
whom  shall  have  obtained  possession   thereof  adversely 
to  the  right  of  presentation  or  gift  of  such  person,  or  of 
some    person  through  whom  he  claims,  if  the  times  of 
such  incumbencies  taken  together  shall    amount    to  the 
full   period  of  sixty  years  ;  and  if  not,  then  for  the   full 
period  of  sixty  years  in   the   vA\o\e(f).     But  it  is  pro- 
vided, that    incumbents    by  reason  of  a  lapse  shall    be 
deemed    to   hav^    obtained    possession   adversely  to   the 
right  of  presentation  or  gift  of  such   patron  as  aforesaid  ; 
but  incumbency,  in  consequence  of  promotion  to  a  bishop- 
rick,  shall,  for  the  purposes  of  the  Act,  be  deemed  a  con- 
tinuation of  the  incumbency  of  the  clerk  so  made  bishop, 
or  in  other  words,  the   first  shall   be  within  the  provision 
and  the  latter  noX(g).     And  every  patron  by  virtue    of 
any  estate,  interest  or  right  which  the  owner  of  an  estate 
tail  in  the  advowson  might  have  barred,  shall  be  deemed 
to  be  a  person  claiming  through  the  person  entitled  to 
such  estate  tail,  and  the  right  to  bring  any  quare  impedit, 
action  or  suit  shall  be  limited  accordingly(/i).     But  no 
advowson  shall  be  recovered  after  one  hundred  years  from 
the  time  at  which  a  clerk  shall  have  obtained  possession 
of  such  benefice  adversely  to  the  right  of  presentation  of 
such  person,  or  of  some  person  through  u  horn  he  claims, 

(d)   Sec.  28.  (c)   Sec.  29.  (  /)  Sec.  30. 

(g-)   Sec.  31.  (A)   Sec.  32. 

VOL.  I.  61  (*408) 


^g2  OF  THE  TITLE  WHICH 

or  of  some  person  entitled  to  some  preceding  estate  or 
(*)interest,  or  undivided  share,  or  alternate  right  of  pre- 
sentation or  gift,  held  or  derived  under  the  same  title, 
unless  a  clerk  shall  subsequently  have  obtained  posses- 
sion of  such  benefice  on  the  presentation  or  gift  of  the 
person  so  claiming,  or  of  some  person  through  whom  he 
claims,  or  of  some  other  person  entitled  in  respect  of  an 
estate,  share  or  right  held  or  derived  under  the  same 
title  (^). 

And  the  Act  then  provides,  that  at  the  determination  of 
the  period  limited  by  the  Act  to  any  person  for  making 
an  entry  or  distress,  or  bringing  any  writ  of  quare  impedit 
or  other  action  or  suit,  the  right  and  title  of  such  person 
to  the  land,  rent  or  advowson  for  the  recovery  whereof 
such  entry,  distress,  action  or  suit  respectively  might 
have  been  made  or  brought  within  such  period,  shall  be 
extinguished(A:).  This  was  a  proper  provision,  as  under 
the  old  law  it  was  considered  that  although  the  remedy 
was  barred,  the  estate  did  not  cease.  The  receipt  of  the 
rent  payable  by  any  tenant  from  year  to  year,  or  other 
lessee,  is  as  against  such  lessee  or  any  person  claiming 
under  him  (but  subject  to  the  lease),  made  the  receipt  of 
the  profits  of  the  land  for  the  purposes  of  the  Act(/). 

The  Act  then  proceeds  to  enact,  that  all  real  and 
mixed  actions  (except  for  dower,  or  a  quare  impedit,  or 
an  ejectment),  and  all  plaint  (except  for  freebench),  shall 
cease  after  the  31st  day  of  December  1834(m).  But  it 
is  provided,  that  when  on  the  said  31st  day  of  Decem- 
ber 1834,  any  person  who  shall  not  have  a  right  of  entry 
to  any  land  shall  be  entitled  to  maintain  any  such  writ 
or  action  as  aforesaid  in  respect  of  such  land,  such  writ 
or  action  may  be  brought  at  any  time  before  the  1st  day 
(*)of  June    1835,  in  case  the    same  might  have   been 

(e)  Sec.  33.  {h)  Sec.  34. 

(/)  Sec.  35.  (w)  Sec.  36. 

(*409)   (*410) 


A  PURCHASER  MAY  REQUIRE.  ^gg 

brought  if  the  Act  had  not  been  made,  notwithstanding 
the  period  of  twenty  years  before  limited  shall  have  ex- 
pired(?i).  And  it  is  also  provided,  that  when,  on  the  said 
1st  day  of  June  1835,  any  person  whose  right  of  entry 
to  any  land  shall  have  been  taken  away  by  any  descent 
cast,  discontinuance  or  warranty,  might  maintain  any 
such  writ  or  action  as  aforesaid  in  respect  of  such  land, 
such  writ  or  action  may  be  brought  after  the  said  1st  day 
of  June  1835,  but  only  within  the  period  during  which 
by  virtue  of  the  provisions  of  the  Act  an  entry  might 
have  been  made  upon  the  same  land  by  the  person  bring- 
ing such  writ  or  action  if  his  right  of  entry  had  not  been 
so  taken  away(o). 

It  is  then  enacted,  that  no  descent  cast,  discontinu- 
ance or  warranty  which  may  happen  or  be  made  after 
the  said  31st  day  of  December  1833,  shall  toll  or  defeat 
any  right  of  entry  or  action  for  the  recovery  of  \dind(p). 
And  that  after  the  said  31st  day  of  December  1833, 
no  action  or  suit  or  other  proceeding  shall  be  brought, 
to  recover  any  money  secured  upon  any  land  or  rent,  at 
law  or  in  equity,  or  any  legacy,  but  within  twenty  years 
next  after  a  present  right  to  receive  the  same  shall  have 
accrued  to  some  person  capable  of  giving  a  discharge  for 
or  release  of  the  same,  unless  in  the  mean  time  some  part 
of  the  principal  money,  or  some  interest  thereon,  shall 
have  been  paid,  or  some  acknowledgment  of  the  right 
thereto  shall  have  been  given  in  writing  signed  by  the 
person  by  whom  the  same  shall  be  payable,  or  his  agent, 
to  the  person  entitled  thereto  or  his  agent ;  and  in  such 
case  the  tvi^enty  years  to  run  from  such  payment  or  ac- 
knowledgment (q). 

(*)  After  the  said  31st  day  of  December  1833,  no  arrears 
of  dower,  nor  any  damages  on  account  of  such  arrears, 

(m)  Sec.  37.  (o)  Sec.  38. 

{p)  Sec.  39.  {q)  Sec.  40. 

(•*411) 


484 


OF  THE  'J'iTLL  AVmi'H 


shall  be  recovered  or  obtained  by  any  action  or  suit  for 
a  longer  period  than  six  years  next  before  the  commence- 
ment of  such  action  or  suit(r).  And  after  that  day  no 
arrears  of  rent  or  of  interest  in  respect  of  any  sum 
of  money  charged  upon  or  payable  out  of  any  land  or 
rent,  or  in  respect  of  any  legacy,  or  any  damages  in 
respect  of  such  arrears  of  rent  or  interest(I),  shall  be 
recovered  but  within  six  years  next  after  the  same  respec- 
tively shall  have  become  due,  or  next  after  an  acknow- 
ledgment of  the  same  in  writing  shall  have  been  given 
to  the  person  entitled  thereto,  or  his  agent,  signed  by  the 
person  by  whom  the  same  was  payable,  or  his  agent : 
provided  nevertheless,  that  where  any  prior  mortgagee 
or  other  incumbrancer  shall  have  been  in  possession  of 
any  land,  or  in  the  receipt  of  the  profits  thereof,  within 
one  year  next  before  an  action  or  suit  shall  be  brought 
by  any  person  entitled  to  a  subsequent  incumbrance  on 
the  same  land,  the  person  entitled  to  such  subsequent 
mortgage  or  incumbrance  may  recover  the  arrears  of 
interest  which  shall  have  become  due  during  the  whole 
time  that  such  prior  incumbrancer  was  in  such  posses- 
sion or  receipt  as  aforesaid,  although  such  time  may  have 
exceeded  the  term  of  six  years(5). 

The  Act  is  extended  to  the  spiritual  court(/).  But 
it  is  not  to  extend  to  Scotland  ;  nor  is  it,  so  far  as  it 
relates  to  any  right  to  present  to  or  bestow  any  church, 
(*)vicarage,  or  other  ecclesiastical  benefice — to  extend  to 
Ireland(w). 

(r)  Sec.  41.  {s)  Sec.  42. 

(0   Sec.  43.  («)   Sec.  44. 

(I)  I  have  forborne  from  making  any  observation  on  the  particular 
clauses,  as  it  is  too  late  ;  but  this  clause  should  be  modified  without 
loss  of  time,  or  the  grossest  injustice  will  be  committed  upon  the  just 
rights  of  legatees  and  others,  particularly  infant  legatees. 

(^412) 


A  PURCHASER  MAY  REQUIRE.  485 

All  the  provisions  regarding  prescriptions,  &c.  and 
limitations  of  time,  were  not  contained  in  one  act  or 
framed  by  the  same  hand.  .For  the  use  of  the  real  pro- 
perty lawyer,  it  is  still  necessary  to  refer  to  the  leading 
provisions  of  the  2  &  3  Wil.  4,  c.  71  (I),  by  which  it  is 
enacted,  that  no  claim  which  may  be  lawfully  made  at 
the  common  law,  by  custom,  prescription  or  grant,  to 
any  right  of  common  or  other  profit  or  benefit  to  be  taken 
and  enjoyed  from  or  upon  any  land  of  the  King,  or  par- 
cel of  the  duchy  of  Lancaster  or  of  the  duchy  of  Corn- 
wall, or  of  any  ecclesiastical  or  lay  person,  or  body  cor- 
porate, (except  such  matters  and  things  as  are  therein  spe- 
cially provided  for,  and  except  tithes,  rent  and  services,) 
shall,  where  such  right,  profit  or  benefit  shall  have  been 
actually  taken  and  enjoyed  by  any  person  claiming  right 
thereto  without  interruption  for  the  full  period  of  thirty 
years,  be  defeated  or  destroyed  by  showing  only  that  such 
right,  profit  or  benefit  was  first  taken  or  enjoyed  at  any 
time  prior  to  such  period  of  thirty  years,  but  neverthe- 
less such  claim  may  be  defeated  in  any  other  way  by 
which  the  same  is  now  liable  to  be  defeated ;  and  when 
such  right,  profit  or  benefit  shall  have  been  so  taken  and 
enjoyed  as  aforesaid  for  the  full  period  of  sixty  years,  the 
right  thereto  shall  be  deemed  absolute  and  indefeasible, 
unless  it  shall  appear  that  the  same  was  taken  and  en- 
joyed by  some  consent  or  agreement  expressly  made  or 
given  for  that  purpose  by.  deed  or  writing(^'). 

(*)And  that  no  claim  which  may  be  lawfully  made  at 
the  common  law,  by  custom,  prescription  or  grant,  to  any 
way  or  other  easement,  or  to  any  watercouse,  or  the  use 
of  any  water,  to  be  enjoyed  or  derived  upon,  over  or 
from  any  land  or  water  of  the  King,  or  parcel  of  the 
duchy  of  Lancaster  or  of  the  duchy  of  Cornwall,  or  being 

(r)  Sec.  1. 


(I)  It  does  not  extend  to  Scotland  or  Ireland.— Sec.  9. 

(Ml  3, 


486 


OF  THE  TITLE  WHICH 


the  property  of  any  ecclesiastical  or  lay  person,  or  body 
corporate,  when  such  way  or  other  matter  shall  have  been 
actually  enjoyed  by  any  person  claiming  right  thereto  with- 
out interruption  for  the  full  period  of  twenty  years,  shall 
be  defeated  or  destroyed  by  showing  only  that  such  way 
or  other  matter  was  first  enjoyed  at  any  time  prior  to 
such  period  of  twenty  years,  but  nevertheless  such  claim 
may  be  defeated  in  any  other  way  by  which  the  same  is 
now  liable  to  be  defeated ;  and  where  such  way  or  other 
matter  shall  have  been  so  enjoyed  as  aforesaid  for  the  full 
period  of  forty  years,  the  right  thereto  shall  be  deemed 
absolute  and  indefeasible,  unless  it  shall  appear  that 
the  same  was  enjoyed  by  some  consent  or  agreement 
expressly  given  or  made  for  that  purpose  by  deed  or 
writing(.r). 

And  it  is  enacted,  that  when  the  access  and  use  of 
light  to  and  for  any  dwelling-house,  workshop  or  other 
building  shall  have  been  actually  enjoyed  therewith  for  the 
full  period  of  twenty  years  without  interruption,  the  right 
thereto  shall  be  deemed  absolute  and  indefeasible,  unless 
it  shall  appear  that  the  same  was  enjoyed  by  some  con- 
sent or  agreement  expressly  made  or  given  for  that  pur- 
230se  by  deed  or  writing(7/). 

And  that  each  of  the  respective  periods  of  years 
herein-before  mentioned  shall  be  deemed  and  taken 
to  be  the  period  next  before  some  suit  or  action  wherein 
the  claim  or  matter  to  which  such  period  may  relate 
(*)shall  have  been  or  shall  be  brought  into  question,  and 
that  no  act  or  other  matter  shall  be  deemed  to  be  an 
interruption,  within  the  meaning  of  the  statute,  unless 
the  same  shall  have  been  or  shall  be  submitted  to  or 
acquiesced  in  for  one  year  after  the  party  interrupted 
shall  have  had  or  shall  have  notice  thereof,  and  of  the 
person  making  or  authorizing  the  same  to  be  made(2:). 

{x)  Sec.  2.  (//)  Sec.  3.  (z)   Sec.  4. 

(*414) 


A  PURCHASER  MAY  REQUIRE.  ^g^ 

And  after  directing  the  mode  of  p]eading(«),  it  pro- 
vides that  no  presumption  shall  be  allowed  or  made  in 
favor  or  support  of  any  claim,  upon  proof  of  the  exer- 
cise or  enjoyment  of  the  right  or  matter  claimed  for  any 
less  period  of  time  or  number  of  years  than  for  such 
period  or  number  mentioned  in  the  Act  as  may  be  appli- 
cable to  the  case  and  to  the  nature  of  the  claim(6). 

But  it  is  provided,  that  the  time  during  which  any 
person  otherwise  capable  of  resisting  any  claim  to  any  of 
the  matters  before  mentioned  shall  have  been  or  shall  be 
an  infant,  idiot,  non  compos  mentis,  feme  covert,  or  tenant 
for  life,  or  during  which  any  action  or  suit  shall  have 
been  pending,  and  which  shall  have  been  diligently  pro- 
secuted, until  abated  by  the  death  of  any  party  or  parties 
thereto,  shall  be  excluded  in  the  computation  of  the 
periods  herein-before  mentioned,  except  only  in  cases 
where  the  right  or  claim  is  hereby  declared  to  be  abso- 
lute and  indefeasible(c). 

Provided  that  when  any  land  or  water  upon,  over  or 
from  which  any  such  way  or  other  convenient  water- 
course or  use  of  water  shall  have  been  or  shall  be  en- 
joyed or  derived  hath  been  or  shall  be  held  under  or  by 
virtue  of  any  term  of  life,  or  any  term  of  years  exceeding 
three  years  from  the  granting  thereof,  the  time  of  the 
enjoyment  of  any  such  way  or  other  matter  as  herein  last 
(*)before  mentioned,  during  the  continuance  of  such  term, 
shall  be  excluded  in  the  computation  of  the  said  period 
of  forty  years,  in  case  the  claim  shall  within  three  years 
next  after  the  end  or  sooner  determination  of  such  term 
be  resisted  by  any  person  entitled  to  any  reversion  ex- 
pectant on  the  determination  thereof(c^). 

And  by  the  2  &  3  Wil.  4,  c.  100,  "for  shortening  the 

(a)  Sec.  5.  (6)   Sec.  6. 

(c)  Sec.  7.  {d)   Sec.  8. 

(*415) 


AQQ  OF  THE  TITLE  WHICH 

time  required    in  claims  of  modus  decimandi,  or  exemp- 
tion from  or  discharge  of  titlies"(l),  it  is  enacted   that  all 
prescriptions  for  any  modus  decimandi,  or  to  any  exemp- 
tion from  tithes,  by  composition  real   or  otherwise,  shall, 
in  cases  where  the  render  of  tithes  in  kind  shall  be  de- 
manded by  the  King,  or  by  any  duke  of  Cornwall,  or  by 
any  lay  person,   not  being  a  corporation  sole,  or  by  any 
body  corporate,  whether  temporal  or  spiritual,  be  deemed 
good  in  law,  upon  evidence  showing,  in  cases  of  claim  of 
a  modus  the  render  of  such  modus,  and  in  cases  of  claim 
to  exemption  showing  the  enjoyment  of  the  land,  without 
render  of  tithes,  money,  or  other  matter  in  lieu  thereof,  for 
thirty  years  next  before  the  time  of  such  demand,  unless, 
in  the  case  of   claim  of  a  modus,  the  actual  render  of 
tithes,  or  of   money  or  other    thing  differing    from  the 
modus  claimed,  or,  in  case  of  claim  to  exemption,  the 
render   of  tithes,  or  of   money  or  other  matter  in   lieu 
thereof,  shall  be  shown    to   have    taken   place  at   some 
time   prior  to  such  thirty  years,  or  it  shall   be    proved 
that  such  payment  or  render  of  modus  was  made  or  en- 
joyment  had   by  some  consent  or  agreement   expressly 
made  or  given  by  deed  or  writing  ;  and  if  such  proof  in 
(*)support  of  the  claim  shall  be  extended  to  the  full  peri- 
od of  sixty  years  next  before  the  time  of  such  demand, 
the  claim  shall   be  deemed  indefeasible,  unless  it  shall  be 
proved  that  such  payment  or  render  of  modus  was  made 
or  enjoyment  had  by  some   consent   or   agreement  ex- 
pressly made   or   given   for    that    purpose    by   deed   or 
writing. 

And  where  the  render  of  tithes  in  kind  shall  be  de- 
manded by  any  archbishop,  or  other  corporation  sole, 
whether    spiritual  or  temporal,  every  such  prescription 

(I)  It  does  not  extend  to  Ireland  (sec.  9.)  ;  nor  to  suits  commenced 
at  a  day  now  past  (sec.  3.)  ;  and  there  is  a  further  exception  as  to  tithes 
then  let  or  compounded  for. — See  sec.  4. 

(*416) 


A  PURCHASER  MAY  R EQUIP. K.  -  A^OQ 

shall  be  indefeRsible,  iij)on  evidence  showing  such  ren- 
der of  modus  made  or  enjoyment  had,  as  before  men- 
tioned applicable  to  the  nature  of  the  claim,  during  the 
time  that  two  persons  in  succession  shall  have  held  the 
office  or  benefice  in  respect  whereof  such  render  of  tithes 
shall  be  claimed,  and  for  not  less  than  three  years  after 
the  appointment  and  institution  or  induction  of  a  third 
person  thereto :  provided  always,  that  if  the  whole  time 
of  the  holding  of  such  two  persons  shall  be  less  than  sixty 
years,  then  it  shall  be  necessary  to  show  such  render  of 
modus  made  or  enjoyment  had,  not  only  during  the  whole 
of  such  time,  but  also  during  such  further  number  of 
years  either  before  or  after  such  time,  or  partly  before 
and  partly  after,  as  shall  with  such  time  be  sufficient  to 
make  up  the  period  of  sixty  years,  and  also  during  the  fur- 
ther period  of  three  years  after  the  appointment  and  insti- 
tution or  induction  of  a  third  person  to  the  same  office  or 
benefice,  unless  it  shall  be  proved  that  such  payment  or 
render  of  modus  was  made  or  enjoyment  had  by  some 
consent  or  agreement  expressly  made  or  given  for  that 
purpose  by  deed  or  wriling(e). 

And  it  is  enacted,  that  every  composition  for  tithes 
which  hath  been  made  or  confirmed  by  the  decree  of  any 
(*)court  of  equity  in  England  in  a  suit  to  which  the  ordi- 
nary, patron  and  incumbent  were  parties,  and  which  hath 
not  since  been  set  aside,  abandoned  or  departed  from, 
shall  be  valid  in  law  ;  and  that  no  modus  or  exemption 
shall  be  deemed  to  be  within  the  provisions  of  the  Act, 
unless  the  same  shall  be  proved  to  have  existed  and  been 
acted  upon  at  the  time  of  or  within  one  year  next  before 
the  passing  of  the  said  Act(f). 

But  it  is  provided,  that  where  any  lands  or  tenements 
shall    have  been  or  shall   be   held   by  any  person  entitled 

(e)  Sec.  1.  .  (/)   Fee.  2. 

VOL.   I.  62  '  (*417) 


^gQ  OF  THE  TITLE,  &c. 

to  the  tithes  thereof,  or  by  any  lessee  of  any  such  person, 
or  by  any  person  compounding  for  tithes,  or  by  any  ten- 
ant whereby  the  right  to  the  tithes  of  such  lands  or  tene- 
ments may  have  been  or  may  be  during  any  time  in  the 
occupier  thereof,  or  in  the  person  entitled  to  the  rent 
thereof,  the  whole  of  such  time  shall  be  excluded  in  the 
computation  of  the  several  periods  of  time  therein-before 
mentioned  (g). 

And  it  is  also  provided,  that  the  time  during  which 
any  person  otherwise  capable  of  resisting  any  claim  shall 
have  been  or  shall  be  an  infant,  idiot,  non  compos  mentis, 
feme  covert,  or  lay  tenant  for  life,  or  during  which  any 
action  or  suit  shall  have  been  pending,  and  which  shall 
have  been  diligently  prosecuted,  until  abated  by  the 
death  of  any  party  or  parties  thereto,  shall  be  excluded 
in  the  computation  of  the  periods  herein-before  men- 
tioned, except  only  in  cases  where  the  right  or  claim  is 
thereby  declared  to  be  absolute  and  indefeasible(/i). 
And  after  providing  for  the  manner  in  which  in  actions 
and  suits  the  modus  or  exemption  may  be  alleged(i), 
it  is  enacted,  that  no  presumption  shall  be  allowed  or 
(*)made  in  favor  or  support  of  any  claim  upon  proof  of 
the  exercise  or  enjoyment  of  the  right  or  matter  claimed 
for  any  less  period  of  time  or  number  of  years  than  for 
such  period  or  number  mentioned  in  the  Act  as  may 
be  applicable  to  the  case  and  to  the  nature  of  the 
claim(A:)(I). 

{g)  Sec.  6.  (/i)  Sec.  6» 

(i)  Sec.  7.  {k)  Sec.  8. 

(I)  For  the  new  limitation  upon  actions  of  debt  for  rent,  or  upon  any 
bond,  &c.  see  3  &  4  W.  4,  c.  42,  s.  3,  4,  5  &  7,  which  last  section,  it 
should  be  remembered,  applies  generally  to  the  21  Jac.  1. 

(*418) 


[  491  J 


(*)CHAPTER  Vlll. 


OF    THE    TIME    ALLOWED    TO    COMPLETE    THE    CONTRACT. 


In  sales  by  private  agreement  it  is  usual  to  fix  a  time 
for  completing  the  contract.  .  In  such  a  contract  the  word 
month  may  be  construed  either  lunar  or  calendar,  accord- 
ing to  the  intention  of  the  parties,  to  be  collected  from 
the  whole  instrument  taken  together(«).  The  time  fixed 
is,  at  law,  deemed  of  the  essence  of  the  contract(6)(232)  ; 
for  it  is  the  duty  of  the  seller  to  be  ready  to  verify  the 
abstract  on  the  day  on  which  it  was  agreed  that  the  pur- 
chase should  be  completed ;  and  if  he  have  not  the  title 
deeds  in  his  possession,  or  the  abstract  set  forth  a  defec- 
tive title,  the  purchaser  may  resist  the  completion  of  the 
contract,  and  recover  his  deposit. 

In  a  late  case,  however(c),  upon  a  sale  by  auction, 
the  conditions  stipulated  that  the  abstract  should  be  de- 
livered to  the  purchaser  within  a  fortnight,  and  should 
be  returned  at  the  end  of  two  months;  that  a  draft  of  the 
conveyance  should  be  delivered  to  the  purchaser  within 
three  months,  and  be  returned  to  the  seller  within  four 
months ;  and  that  the  remainder  of  the  purchase-money 

(a)  Lang  v.  Gale,  1  Mau.  &  Selw.  111. 
(6)  Berry  v.  Young,  2  Esp.  Ca.  640,  n. 
(c)  Lang  V.  Gale,  1  Mau.  &  Selw.  111. 

(232)  So,  in  equity,  time  may  be  of  the  essence  of  a  contract.  Ben- 
edict V.  Lynch,  1  Johns.  Ch.  Rep.  370.  Though  mere  lapse  of  time 
is  not,  in  all  cases,  an  objection  to  decreeing  a  specific  performance. 
Watets  V.  Travis,  on  appeal,  9  Johns.  Rep.  450.  See  Thompson  v. 
Kclcham,  8  Johns.  Rep.  146.     2d  edit. 

(*419) 


492 


OF  THE  TIME  ALLOWED 


should  be  paid  on  the  24th  day  of  June  tlien  next  (which 
was  five  months  after  the  sale),  when  the  purchaser  should 
receive  his  conveyance  duly  executed  by  all  parties  ;  to 
be  prepared  by  the  seller's  attorney,  at  the  expense  of 
the  purchaser.  It  was  contended  that  the  stipulation  in 
(*)regard  to  the  delivery  of  the  conveyance  was  not  a  con- 
dition precedent,  and  it  was  compared  to  the  case  of 
Hall  V.  Cazenove(^?),  where  a  charter-party  contained 
a  covenant  by  the  owner,  that  the  ship  should  sail  on  a 
specified  day,  and  the  owner  afterwards  brought  an  action 
of  covenant  for  the  freight ;  it  was  held  that  he  need  not 
aver  that  the  ship  sailed  on  that  day,  although  the  de- 
fendant (the  freighter)  covenanted  to  pay  the  freight  in 
consideration  of  every  thing  above  mentioned.  It  was 
not  necessary  to  decide  the  point ;  but  Le  Blanc,  J.  said, 
that  it  was  clear  that  it  was  a  condition  precedent  that 
a  draft  of  the  conveyance  should  be  delivered  to  the  pur- 
chaser ;  the  question  was,  whether  it  must  be  done  by 
a  particular  day.  It  was  not  necessary,  however,  to  enter 
upon  that  question  ;  if  it  were,  it  might  perhaps  be  mate- 
rial to  advert  to  the  rule,  that  where  a  condition  does 
not  go  to  the  whole  consideration(6)  of  the  contract,  but 
to  a  part  only,  it  is  not  a  condition  precedent.  Bayley,  J . 
was  of  the  same  opinion.  It  was  not  a  condition  prece- 
dent that  the  draft  should  be  delivered  by  a  particular 
day,  for  he  did  not  consider  the  precise  time  of  the  deli- 
very as  an  essential  ingredient  in  that  condition  which 
was  meant  only  to  secure  a  delivery  within  a  reasonable 
time. 

The  general  opinion  has  always  been,  that  the  day 
fixed  was  imperative  on  the  parties  at  law.  This  was  so 
laid  down  by  Lord  Kenyouj  and  has  never  been  doubted 
in  practice.     The  contrary  rule  would    lead  to  endless 

{d)  4  East,  477. 

(e)  See  Havclock  v.  Geddes,  10  East,  564. 

(*420) 


TO  COMPLETE  THE  CONTRACT. 


493 


difficulties.  In  the  above  case,  for  example,  the  different 
times  appointed,  1 .  for  delivery  of  the  abstract ;  2.  for 
the  return  of  it ;  3.  for  the  delivery  of  the  conveyance  ; 
4.  for  the  return  of  it ;  and  5.  for  the  completion  of  the 
purchase,  were  all  links  of  the  same  chain,  and  if  one 
(*)link  were  broken,  the  whole  chain  would  be  destroyed. 
If  the  time  appointed  for  the  delivery  of  the  conveyance 
was  not  an  essential  ingredient,  but  was  meant  only  to 
secure  a  delivery  within  a  reasonable  time,  it  follows  that 
the  same  rule  must  apply  to  the  time  fixed  for  the  return 
of  it,  and  also  to  the  time  appointed  for  the  completion 
of  the  purchase.  The  effect  of  this  rule  would  be,  that 
the  appointment  of  a  day  would  have  no  effect,  and  in 
every  case  it  must  be  referred  to  a  jury  to  consider  whe- 
ther the  act  was  done  within  a  reasonable  time.  The 
precise  contract  of  the  parties  would  be  avoided,  in  order 
to  introduce  an  uncertain  rule,  which  would  lead  to  end- 
less litigation.  This  cannot  be  compared  to  a  case  like 
Hall  V.  Cazenove :  there  the  ship  did  sail  without  being 
countermanded,  and  the  substance  of  the  covenant  was 
considered  to  be,  that  the  ship  should  go  to  the  place 
named  on  freight  and  return  again,  and  if  the  freighter 
sustained  any  damage  by  reason  of  the  ship  not  having 
sailed  on  the  particular  day,  he  might  recover  it  by  bring- 
ing an  action  on  the  covenant.  In  favor  of  justice  the 
covenants  were  not  considered  as  dependent  on  each  other. 
It  would  be  monstrous  that  the  ship  should  be  permitted 
to  sail  to  the  place  named,  and  return  again,  and  yet  not 
earn  any  freight,  because  it  did  not  sail  on  the  day  ap- 
pointed. So  where  covenants  go  only  to  a  part  of  the 
consideration,  and  a  breach  may  be  paid  for  in  damages, 
the  defendant  has  a  remedy  on  the  covenant,  and  shall 
not  plead  it  as  a  condition  precedent.  If  A.  covenant 
with  B.  to  build  a  house  for  him  according  to  a  certain 
plan,  and  B.  covenant  with  A.  to  pay  for  the  house  so 

(*421) 


494 


OF  THE  TIME  ALLOWED 


built,  it  is  clear,  notwithstanding  some  aiithoritres  to  the 
contrary,  that  if  A.  build  a  house,  although  not  strictly 
according  to  the  plan,  yet  B.  must  pay  for  it,  and  may 
recover  in  a  distinct  action  against  the  builder  for  any 
(*)damage  sustained  by  the  departure  from  the  plan.  The 
justice  of  this  is  evident.  But  in  the  case  under  consi- 
deration, the  agreements  go  to  the  whole  consideration 
on  both  sides ;  they  are  mutual  conditions  ;  the  one  pre- 
cedent to  the  otheY(f).  If  the  draft  of  the  conveyance, 
for  instance,  is  not  delivered  on  the  day  appointed,  the 
party  who  ought  to  deliver  it  has  broken  his  agreement, 
and  cannot  therefore  recover  upon  it  at  law.  This  works 
no  injustice  ;  for  the  further  execution  of  the  contract  is 
at  once  stopped  ;  the  seller  retains  his  estate,  and  the 
purchaser  his  purchase-money,  and  the  party  making  de- 
fault is  liable,  as  he  ought  to  be,  to  an  action  for  breach 
of  his  engagement.  It  is  to  be  hoped,  therefore,  that  the 
day  appointed  will  always  be  deemed  of  the  essence  of 
the  contract  at  law.  It  has  so  been  held  in  a  recent  case 
in  the  Common  Plecis(g).  And  in  a  later  case  upon  a 
sale  of  goods,  where  fourteen  days  were  allowed  from  the 
day  of  sale  to  the  purchaser  to  clear  away  the  goods,  the 
seller  was  not  prepared  to  deliver  them  the  day  after  the 
sale  to  the  purchaser,  who  applied  for  them  ;  and  it  was 
held,  that  he  (the  seller)  had  broken  his  agreement,  and 
could  not  recover  against  the  purchaser,  who  refused  to 
perform  the  contract(/t).  Where  the  purchaser  by  a 
covenant  in  the  contract,  was  to  pay  a  furthur  sum  of 
money,  provided  the  adjoining  houses  should  be  com- 
pleted, that  is,  paved  in  front,  &c.  before  a  day  named,  and 
the  pavement  was  not  completed  until  after  the  day  ap- 

(/)  Boone  V.  Eyre,  1  H.  Blackst.  273.     See  10  East,  564. 
(o)  Wilde  V.  Forte,  4  Taunt.  334. 

(/i)  Ilagedon  v.  Laing,  1  Marsh.  514;  and  see  Cornish  v.  Rowley, 
post. 
(*422) 


TO  COMPLETE  THE  CONTRACT, 


495 


pointed,  although  the  delay  was  occasioned  by  the  bad 
weather,  which  prevented  the  workmen  from  proceeding, 
yet  the  seller  was  held  not  entitled  to  recover  the  80/. (z). 
(*)But  a  party  may  even  at  law  wave  the  forfeiture,  and 
enlarge  the  time  of  his  contract(j). 

And  equity,  which  from  its  peculiar  jurisdiction  is  ena- 
])led  to  examine  into  the  cause  of  delay  in  completing  a 
purchase,  and  to  ascertain  how  far  the  day  named  was 
deemed  material  by  the  parties,  will  in  certain  cases  carry 
the  agreement  into  execution,  notwithstanding  that  the 
»  time  appointed  be  elapsed(233) ;  for,  as  Lord  Eldon  re- 
marks, the  title  to  an  estate  requires  so  much  clearing 
and  inquiry,  that  unless  substantial  objections  appear,  not 
merely  as  to  the  time,  but  an  alteration  of  circumstances 
affecting  the  value  of  the  thing ;  or  objections  arising  out 
of  circumstances,  not  merely  as  to  the  time,  but  the  con- 
duct of  the  parties  during  the  time  ;  unless  the  objection 
can  be  so  sustained,  many  of  the  cases  go  the  length  of 
establishing,  that  the  objections  cannot  be  maintain- 
ed(A;)(234).  Perhaps  there  is  cause  to  regret  that  even 
equity  assumed  this  power  of  dispensing  with  the  literal 
performance  of  contracts  in  cases  like  these. 

Objections  on  account  of  delay  seem  divisible  into  two 
kinds.  The  one  where  the  delay  is  attributable  to  the 
neglect  of  either  party ;    the  other  where  the  delay  is 

(i)   Maryon  v.  Carter,  4  Carr.  &  Pay.  295. 
{j)  Carpenter  v.    Blandford,  8  Barn.  &  Cress.  575. 
{k)  Per,  Lord  Eldon,  see  7  Yes.  jun.  274 ;  and  see  Hearne  v.  Ten- 
ant, 13  Yes.  jun.  287.     See  Lennon  v.  Napper,  2  Scho.  &  Lef.  683. 

(233)  See  Waters  v.  Travis,  on  appeal,  9  Johns.  Rep.  450. 

(234)  So,  if  on  the  other  hand,  from  the  lapse  of  time,  circumstances 
have  been  so  changed,  that  a  specific  performance,  such  as  would 
answer  the  ends  of  justice,  has  become  impossible,  the  objection  is 
decisive.  Pratt  v.  Carroll,  8  Cranch,  471.  Pratt  v.  Latv,  9  Cranch, 
466,  494. 

(*423) 


j\QQ  OF  THE  TIME  ALLOWED 

unavoidably  occasioned  by  the  state  of  the  title ;  and  of 
each  of  these  we  shall  treat  in  its  order. 

(*)SECTION  I. 
Of  Delays  occasioned  by  the  Neglect  of  either  Party. 


The  time  fixed  on  for  the  completion  of  a  contract,  had 
formerly  less  attention  paid  to  it  in  equity  than  is  now 
given  to  it,  which  seems  to  have  arisen  from  the  case  of 
Gibson  v.  Paterson(Z),  where,  according  to  the  report,  a 
specific  performance  was  decreed  in  favor  of  the  plaintiff, 
the  vendor,  without  any  regard  had  to  his  negligence  in 
not  producing  his  title-deeds,  &c.  within  the  time  limited. 
And  Lord  Hardwicke  is  reported  to  have  said,  that  most 
of  the  cases  which  were  brought  into  the  Court,  relating 
to  the  execution  of  articles  for  the  sale  of  an  estate,  were 
of  the  same  kind,  and  liable  to  that  objection  ;  but  that 
he  thought  there  was  nothing  in  the  objection. 

It  appears,  however,  that  this  case  is  mis-reported  ;  for 
Lord  Rosslyn,  in  Lloyd  v.  Collet(m),  said  he  had  looked 
into  the  case  of  Gibson  v.  Paterson,  in  which  the  reporter 
had  made  Lord  Hardwicke  treat  the  time  as  totally  imma- 
terial. He  said,  it  was  to  be  observed,  that  the  circum- 
stances of  that  case,  of  which  he  had  taken  a  copy,  did 
not  call  for  any  such  opinion.  The  purchaser,  who  hung 
back,  had  bought  an  estate  in  mortgage.     The  contract 

(/)  1  Atk.  12. 

(m)  4  Ves.  jun.  690,  n  ;  and  see  4  Bro.  C.  C.  497.  See  Radcliffe 
V.  Warrington,  12  Ves.  jun.  326  ;  Alley  v.  Deschamps,  13  Ves.  jun. 
225. 

(*424) 


TO  COMPLETE  THE  CONTRACT. 


497 


took  place  in  November,  and  was  to  be  completed  in 
February ;  in  that  time,  therefore,  the  mortgage  could 
only  be  paid  off  by  treaty  with  the  mortgagee.  Upon 
the  facts  it  appeared,  that  application  had  been  made  to 
the  mortgagee,  who  consented  to  take  his  money.  Drafts 
of  conveyance  were  made,  and  countermanded  by  the 
(*)purchaser.  He  had,  after  the  contract,  demised  part  of 
the  estate  to  the  vendor  at  a  rent ;  and,  upon  application 
being  made  to  him,  every  thing  being  ready,  he  said  he 
would  be  off  the  bargain  ;  he  had  no  money  to  pay  for 
it ;  and  if  they  attempted  to  force  him,  he  would  go  to 
Scotland  to  avoid  it.  Lord  Rosslyn  added,  there  could 
not  be  the  smallest  argument  upon  it,  nor  the  least  doubt 
about  the  decree. 

But  whatever  opinion  Lord  Hardwicke  entertained  on 
this  subject(w),  it  is  now  settled,  that  a  man  cannot  call 
upon  a  court  of  equity  for  a  specific  performance,  unless 
he  has  shown  himself  ready,  desirous,  prompt  and  eager  ; 
and  therefore  time  alone  is  a  sufficient  bar  to  the  aid  of 
the  Court(235). 

Thus  in  a  case(o)  where  the  parties  differed  as  to  the 
construction  of  an  agreement,  and  after  a  delay  of  seven 
years  one  of  the  parties  filed  a  bill  for  a  specific  per- 
formance, it  was  dismissed  merely  on  account  of  the 
staleness  of  the  demand. 

A  bill  for  a  specific  performance  is  an  application  to 
the  discretion,  or  rather  to  the  extraordinary  jurisdiction 

(n)   See  1  Ves.  460. 

(o)  Milward  v.  Earl  of  Thanet,  5  Ves.  jun.  720,  n.  (6).  See  Alley 
V.  Deschamps,  13  Ves.  jun.  225. 

(235)  See  Pratt  v.  Carroll,  8  Cranch,  471.  Pratt  v.  Lau;  9 
Cranch,  456,  494.  Somerville  v.  Trueman,  4  Har.  &  M'Hen.  43. 
Benedict  v.  Lynch,  1  Johns.  Ch.  Rep.  370.  In  equity,  time  may  be  dis- 
pensed with,  if  it  be  not  of  the  essence  of  the  contract.  Hepburn  v. 
Auld,  5  Cranch,  262. 

VOL.  I.  63  (*445) 


498 


OF  THE  TIME  ALLOWED 


of  equity,  which  cannot  be  exercised  in  favor  of  persons 
who  have  long  slept  upon  their  rights,  and  acquiesced 
in  a  title  and  possession  adverse  to  their  claim.  Due 
diligence  is  necessary  to  call  the  Court  into  activity,  and 
where  it  does  not  exist,  a  court  of  equity  will  not  lend 
its  assistance ;  it  always  discountenances  laches  and 
neg\ect(p)(236). 

If  the  vendor  be  not  ready  with  his  abstract  and  title- 
deeds  at  the  day  fixed,  the  purchaser  may  avoid  the 
agreement  at  law. 

(*)Thus,  in  a  case(9')  where  upon  a  sale  it  was  agreed 
that  a  good  title  should  be  made  out  by  the  10th  of  July ; 
in  the  beginning  of  July  the  purchaser  called  on  the 
vendor  to  show  him  the  title-deeds  ;  but  he  not  having 
them  in  his  possession,  gave  the  purchaser  an  abstract  of 
the  title,  which  did  not  contain  any  of  the  deeds  ;  and 
although  it  was  suggested  that  an  application  ought  to 
have  been  made  to  the  vendor  at  an  earlier  period,  yet 
Lord  Kenyon  ruled  otherwise,  as  tlie  seller,  he  said, 
ought  to  be  prepared  to  produce  his  title-deeds  at  the 
particular  day. 

This  rule  does  not,  however,  prevail  in  equity  ;  for  it 
is  there  considered  equally  incumbent  on  the  purchaser  to 
ask  for  the  abstract,  as  for  the  vendor  to  deliver  it.  And, 
therefore,  if  a  purchaser  do  not  call  for  the  abstract 
before  the  time  agreed  upon  for  its  delivery(r),  or  do  not 
ask  for  it  until  it  has  become  impossible  to  execute  the 

{p)   Per  Lord  Manners,  1  Ball  &  Bcatty,  GS. 

(q)   Berry  v.  Young,  2  Esp.  Ca.  640,  n. ;  vide  svpra,  p.  419. 

(r)    Guest  v.  Homfrey,  6  Ves.  jun.  SIS. 


(236)  See  Benedict  v.  Lynch,  1  Johns.  Ch.  Rep.  370,  375.  Hatch 
V.  Cobb,  4  Johns.  Ch.  Rep.  559.  Kempshall  v.  Stone,  6  Johns.  Ch. 
Rep.  194.  Higginbolham  v.  Burnet,  5  Johns.  Ch.  Rep.  184.  Pratt 
V.  Carroit,  8  Cranch,  471.  Pratt  v.  Law,  9  Cranch,  456,494.  Col- 
cock  V.  Btitkr,  1  Des.  307.     Butler  v.  O'llear,  1  Pes.  382,  398. 

(*426) 


TO  COMPLETE  THE  CONTRACT.  499 

agreement  by  tlie  day  fixed(5),  equity  will  consider  the 
time  as  waved. 

So,  if  the  purchaser  receive  the  abstract  after  the  day 
appointed,  and  do  not  at  the  time  object  to  the  delay,  he 
cannot  afterwards  insist  upon  it  as  a  bar  to  a  performance 
in  specie(t). 

It  is,  however,  clearly  settled,  that  a  specific  perform- 
ance shall  not  be  enforced,  where  no  steps  have  been 
taken  by  the  vendor,  although  in  proper  time  urged  by 
the  purchaser  to  do  so,  and  the  purchaser,  immediately 
when  the  time  is  elapsed,  insists  upon  his  deposit,  and 
refuses  to  perform  the  agreement. 

This  was  decided  in  Lloyd  v,  Collett(w)  ;  the  case  was, 
(*)that  on  the  10th  August  1792,  the  defendant  contract- 
ed for  the  purchase  of  the  estate,  the  purchase  to  be  com- 
pleted on  or  before  the  25th  of  March  1793,  and  had  fre- 
quently between  those  times  applied  for  an  abstract  of  the 
title,  but  could  not  obtain  one.  Shortly  after  the  25th  of 
March  1793,  the  purchaser  applied  for  his  deposit,  with 
interest  from  the  10th  of  August  1792,  when  he  paid  it  ; 
and  afterwards  repeatedly  applied  for  it  before  the  10th 
of  June  1793,  when  he  brought  an  action  for  the  deposit. 
On  the  16th  September  1793,  an  abstract  was  delivered; 
the  purchaser  was  then  out  of  town,  and  on  his  return, 
on  the  25th  of  Octo])er,  wrote,  insisting  that  he  would 
not  complete  his  purchase.  On  the  6th  of  November  the 
bill  was  filed  by  the  vendor  for  a  specific  performance, 
and  for  an  injunction  to  restrain  the  proceedings  at  law. 
Lord    Rosslyn    said,   the  conduct   of   parties,   inevitable 

(«)  Jones  V.  Price,  3  Anstr.  924. 

(/)  Smith  V.  Burnam,  2  Anstr.  527  ;  and  see  Seton  r.  Slade,  7  Yes. 
jun.  265. 

(tt)  4  Bro.  C.  C.  469 ;  4  Ves.  jun.  689.  Sec  5  Ves.  737 ;  7  Ves. 
jun.  278;  and  see  Pincke  v.  Ciiiteis,  stated  infra;  Potts  v.  Webb,  4 
Bro.  C,  C.  330,  cited  ;  Paine  v.  Mcllcr,  6  Ves.  jun.  349  ;  and  Wardt- 
L\  Jellcry,  4  Price,  294. 

(*427) 


er\Q  OF  THE  TIME  ALLOWED 

accident,  &c.  might  induce  the  Court  to  relieve  ;  but  it 
was  a  different  thing  to  say,  that  the  appointment  of  a 
day  was  to  have  no  effect  at  all,  and  that  it  was  not  in  the 
power  of  the  parties  to  contract,  that  if  the  agreement 
was  not  executed  at  a  particular  time,  the  parties  should 
be  at  liberty  to  rescind  it.  And  he  therefore  considered 
the  contract  as  at  an  end. 

But  where  a  vendor  has  proceeded  to  make  out  his 
title,  and  has  not  been  guilty  of  gross  negligence,  equity 
will  assist  him,  although  the  title  was  not  deduced  at  the 
time  appointed(237). 

Thus,  in  Fordyce  v.  Ford(.'r),  the  purchase  was  to  be 
completed  on  the  30th  July  1793.  The  abstract  was  not 
delivered  until  the  8th,  and  the  treaty  continued  until  the 
25th  of  September,  on  which  day  the  deeds  were  delivered, 
(*)and  every  difficulty  cleared  up  ;  when  the  purchaser 
refused  to  proceed,  alleging  that  he  wanted  the  estate  for 
a  residence  for  the  last  summer,  and  insisting  he  was  not 
bound  to  go  on,  on  account  of  the  delay.  The  Master  of 
the  Rolls  said,  the  rule  certainly  was,  that  where  in  a 
contract  either  party  had  been  guilty  of  gross  negligence, 
the  Court  would  not  lend  its  assistance  to  the  completion 
of  the  contract ;  but  in  this  case  he  thought  there  had 
been  no  such  negligence,  and  decreed  accordingly ;  add- 
ing, that  he  hoped  it  would  not  be  gathered  from  thence, 
that  a  man  was  to  enter  into  a  contract,  and  think  he  was 
to  have  his  own  time  to  make  out  his  title. 

The  rules  on  this  subject  apply,  as  they  ought  to  do,  to 
each  party.  And  therefore,  where  a  purchaser  permits 
a  long  time  to  elapse,  without  evincing  a  fixed  marked 
intention  to  carry  his  contract  into  execution,  he  will   be 

(x)  4  Bro.  C.  C.  494  ;  Radcliffe  v.  Warrington,  13  Ves.  jun.  323. 

(237)  As  to  the  extension  of  time  for  completing  the  title,  see  Hep- 
burn V.  Dunlop,  1  Wheat.  179,  196.  Hepburn  v.  Jlulcl,  5  Cranch,  262. 
See  also,  Ramsay  v.  Brailsford,  2  Des.  683. 

(*428) 


TO  COMPLETE  THE  CONTRACT.  501 

left  to  his  remedy  at  law,  although  he  may  have  paid  part 
of  the  purchase-money.  He  is  not  to  be  suffered  to  lie 
by,  and  speculate  on  the  estate  rising  in  va.\ue(y).  Nor 
will  he  be  assisted  by  equity,  where  he  has  made  frivolous 
objections  to  the  title,  and  trifled,  or  shown  a  backward- 
ness to  perform  his  part  of  the  agreement,  especially  if 
circumstances  are  altered(z).  And  where  the  price  is 
unreasonable  or  inadequate,  or  the  contract  is  in  other 
respects  inequitable,  equity  will  not  assist  either  party,  if 
he  has  permitted  the  day  appointed  for  completing  the 
contract  to  elapse  without  performing  his  part  of  the 
agree  m  en  t(«). 

(*)The  time,  however,  is  more  particularly  attended  to 
in  sales  of  reversion:  for  it  is  of  the  essence  of  justice 
that  such  contracts  should  be  executed  immediately,  and 
without  delay.  No  man  sells  a  reversion  who  is  not  dis- 
tressed for  money ;  and  it  is  ridiculous  to  talk  of  making 
him  a  compensation  by  giving  him  interest  on  the  pur- 
chase-money during  the  delay(6). 

So  time  is  very  material  where  the  estate  is  sold  in 
order  to  pay  off  any  incumbrance  bearing  a  higher  rate 
of  interest  than  the  vendor  is  entitled  to  receive,  in  re- 
spect of  the  purchase-money,  during  the  delay(c)  ;  or  the 
estate  is  sold  for  the   purposes  of  a  trade  or  manufacto- 

(y)  Harrington  v.  "VYheeler,  4  Ves.  jun.  686  ;  Alley  v.  Deschamps, 
13  Ves.  jun.  225. 

(2)  Hayes  rn  Caryll,  1  Bro.  P.  C.  27;  6  Yin.  Abr.  538,  pi.  18; 
Spurrier  v.  Hancock,  4  Ves.  jun.  667  ;  Pope  v.  Simpson,  5  Ves.  jun. 
145  ;  and  Coward  v.  Odingsale,  2  Eq.  Ca.  Abr.  688,  pi.  5  ;  and  see 
Green  v.  Wood,  2  Vern.  632  ;  Bell  v.  Howard,  9  Mod.  302  ;  and 
Main  v.  Melbourn,  4  Ves.  jun.  720. 

(a)  Vide  ante,  eh.  6 ;  and  Whorwood  v.  Simpson,  2  Vern.  186  ; 
Lewis  V.  Lord  Lechmere,  10  Mod.  503. 

(6)  Newman  v.  Rodgers,  4  Bro.  C.  C.  391;  and  see  Spurrier  r. 
Hancock,  4  Ves.  jun.  667. 

(c)  Popham  v.  Eyre,  Lofft,  786  ;  and  see  a  case  cited  in  2  Scho.  & 
Lef.  604. 

(-*429) 


502  *^^  THE  TIME  ALLOWED 

ry(d)  ;  or  the  subject  of"  the  contract  is  in  its  nature  of  a 
fluctuating  value(e). 

SECTION  II. 
Of  Delays  occasioned  by  the  Stale  of  lite  Title, 


It   niaj  be  laid  down  as  a  general   proposition,  that  a 
delay  accounted  for  on  the  above  ground  will  not  prevent 
a  specific  performance   being   decreed,   where  the   time 
fixed  for  completing  the  contract  is  not  material.     Thus, 
if  an  estate  was  described  as  in  good  repair,  and  it  turned 
out  to  be  in   bad   repair,  and   several   months  may  be  re- 
quired  to  repair  it,  jet  the  purchaser  cannot  resist  the 
contract  on  the  ground  of  time,  unless  it  could  be  clearly 
shown,  that  he  wanted   possession  of  the  house  to  live  in 
at  a  given  period,  by  which  time  the  repairs  could  not  be 
(*)completed(y^.     So  if  the  estate  is  in  lease,  and  it  was 
stated  that  the  purchaser  would  be  entitled   to  possession 
several  months   before   the   lease  actually  expire,  yet  he 
cannot  rescind  the  agreement,  unless  the  personal  occu- 
pation of  the  estate  was  essential  to  him  at  the  time  ap- 
pointed(g). 

Where  time  is  not  material,  and  the  title  is  bad,  but 
the  defect  can  be  cured,  if  the  vendee  is  unwilling  to  stay, 

{d)  Parker  v.  Frith,  1  Sim.  &  Stu.  199  ;  Wright  i'.  Howard,  ib. 
190  ;  Coslake  i;.  Tilt,  1  Russ.  376. 

(e)   Doloret  v.  Rothschild,  1  Sim.  &  Stu.  590. 

(/)   See  Dyer  r.  Hargrave,  10  Ves.  jun.  605,  supra,  p.  290. 

ig)  Hall  V.  Smith,  Rolls,  18  Dec.  1807,  MS.;  S.  C.  14  Ves.  jun. 
426;  and  see  13  Ves.  jun.  77. 

(*430) 


TO  COMPLETE  THE  CONTRACT.  5Q3 

the  vendor  should  file  a  bill  in  equity  to  enforce  the  per- 
formance of  the  contract(/i)  ;  for  it  is  sufficient  if  the 
party  entering  into  articles  to  sell  has  a  good  title  at  the 
time  of  the  decree  ;  the  direction  of  the  Court  being,  in 
all  these  cases,  to  inquire  whether  the  seller  can,  not 
whether  he  could,  make  a  title  at  the  time  of  executing 
the  agreement(238). 

This  principle  was  followed  in  a  case  of  frequent  re- 
ference(/).  And  in  a  late  case(A:),  the  vendor,  at  the 
time  he  filed  the  bill  for  a  specific  performance,  had  only 
a  term  of  years  in  the  estate,  of  which  he  had  articled  to 
sell  the  fee-simple,  and  after  the  bill  was  filed,  procured 
the  fee  by  means  of  an  act  of  parliament ;  and  as  the  day 
on  which  the  contract  was  to  be  carried  into  execution 
was  not  material,  a  specific  performance  was  decreed. 

The  same  rule  prevails  at  law,  where  no  time  is  fixed 
for  completing  the  contract,  and  an  application  for  the  title 
has  not  been  made  by  the  purchaser  previously  to  an 
action  by  the  vendor  for  breach  of  contract.  For  in 
Thompson  v.  Miles(Z),  a  man  agreed  to  sell  a  term  of 
(*)which  he  stated  forty  years  to  be  unexpired.  It  appear- 
ed there  were  only  thirty-nine,  but  by  an  agreement  indors- 
ed on  the  lease,  the  lessor  agreed  to  add  one  year  to  the 
unexpired  term.  This  agreement  was  dated  after  an 
action  brought  by  the  vendor  for  damages  on  breach  of 
as^reement:  and  Lord  Kenvon  ruled,  that  the  vendor 
having  at  that  time   a  good    title  was    sufficient.     His 

(/j)    See  6  Yes   jun.  655  ;   10  Yes.  jun.  315. 

(i)    Langford  v.  Pitt,   2  P.  Wms.  629  ;  and  sec  Jenkins  v.  Hiles,  6 
Ves.  jun.  646  ;   Seton  v.  Slade,  7  Yes.  jun.  265. 
(h)   VVynn  v.  Morgan,  7  Ves.  jun.  202. 
(/)   1  Esp.  Ca.  184  ;  see  Willett  v.  Clarke,  10  Price,  207. 

(238)  See  Hepburn  v.  Auld,  5  Cranch,  262.  See  also  Ihphurn  v. 
Dunlop,  1  "Wheat.  179,  195.  Clute  v.  Robison,  on  appeal,  2  Johns. 
Rep.  596. 

(*431) 


504 


OF  THE  TIME  ALLOWED 


Lordship  said,  that  it  had  been  solemnly  adjudged,  that  if 
a  party  sells  an  estate  without  having  title,  but  before  he 
is  called  upon  to  make  a  conveyance,  by  a  private  act  of 
parliament  gets  such  an  estate  as  will  enable  him  to  make 
a  title,  that  is  sufficient :  that  here  the  plaintiff  being 
enabled  to  make  a  title,  and  the  defendant  never  having 
applied  for  it,  he  should  not  be  allowed  to  set  up  against 
the  plaintiff  a  want  of  title,  though  the  power  of  making 
that  title  was  obtained  after  the  action  was  brought. 

But  if  the  vendor  cannot  verify  his  abstract  at  the  time 
appointed,  or  if  he  produce  a  defective  title,  aud  the  pur- 
chaser bring  an  action  for  recovery  of  the  deposit,  the 
vendor  having  a  title  at  the  time  of  the  trial  will  not  avail 
him.  Thus,  in  Cornish  v.  Rowley(m),  where  a  purchaser 
sought  to  recover  his  deposit,  it  appeared  that  the  ab- 
stract of  the  title  began  in  the  year  1793,  and  after  reciting 
that  the  deeds  relating  to  the  estate  had  been  lost,  stated 
a  fine  and  non-claim.  Upon  inquiry,  it  was  found  that  the 
fact  of  the  deeds  having  been  lost  was  not  true.  The 
counsel  for  the  defendant  said  they  were  ready  to  make 
out  a  good  title.  Lord  Kenyon  said,  that  the  vendor 
must  be  prepared  to  make  out  a  good  title  on  the  day 
when  the  purchase  is  to.  be  completed.  Indulgence,  he 
was  aware,  was  often  given  for  the  purpose  of  procuring 
probates  of  wills,  &c.  But  this  indulgence  was  voluntary 
on  the  part  of  the  intended  purchaser.  It  is  the  duty  of 
(*)the  seller  to  be  ready  to  verify  his  abstract  at  the  day 
on  which  it  was  agreed  that  the  purchase  should  be  com- 
pleted. If  the  seller  deliver  an  abstract,  setting  forth  a 
defective  title,  the  plaintiff  may  object  to  it.  No  man  was 
ever  induced  to  take  a  title  like  the  present.  A  fine  and 
non-claim  are  good  splices  to  another  title,  but  they  will 
not  do  alone.  There  are  many  exceptions  in  the  statute 
in  favor  of  infants,  femes  covert,  &c.     As  a  good  title  was 

(m)  B.  R.  Midd.  Sitt,  after  M.  T.  40  Geo.  III. ;  1  Selw.  N.  P.  160. 

(*432) 


TO  CO.MPLETE  THE  CONTRACT. 


505 


not  mndc  out  at  the  day  fixed,  he  should  direct  the  jury  to 
find  a  verdict  tor  the  deposit,  \'\  ith  interest  up  to  that  day. 
And  a  verdict  was  found  by  the  jury  accordingly. 

So,  in  Bnrtlett  v.  'rucliin(/i),  assignees  of  a  bankrupt 
sold  an  estate,  and  no  tin^e  v»as  fixed  for  completing  the 
purchase.  The  purchaser  upon  a  supposed  defect  of  title 
abandoned  the  "contract ;  aftencards  the  commission  was 
superseded,  and  a  new  one  issued,  under  w^hich  the  same 
assignees  were  chosen.  It  was  held  that  the  purchaser 
might  rescind  the  contract,  for  at  the  time  he  gave  notice 
of  his  abandonment  of  the  contract,  the  assignees  could 
not  make  out  a  good  title.  And  in  a  late  case(o),  the 
facts  were,  that  upon  a  sale  it  was  agreed  that  the  pur- 
chase-money should  be  paid  on  or  before  Lady-day  1803, 
on  having  a  good  title.  The  vendors  were  assignees  of 
a  bankrupt  who  claimed  under  a  will.  They  thought 
that  he  had  an  estate-tail  under  the  will,  and  that  there- 
fore they  could  make  a  title ;  but  under  the  devise  he 
only  took  for  life,  with  contingent  remainders  over.  The 
bankrupt,  however,  being  heir  at  law  of  the  testator,  could 
make  a  title  by  levying  a  fine,  and  was  willing  to  join  ;  but 
these  facts  were  not  stated  in  the  abstract  delivered,  or 
communicated  to  the  purchaser  until  a  fortnight  before 
(*)the  assizes.  The  Court,  after  showing  that  the  bank- 
rupt took  only  an  estate  for  life  under  the  devise  to  him, 
said,  as  it  was  stated,  that  previous  to  the  time  fixed  for 
payment  of  the  money,  and  completion  of  the  purchase, 
or  indeed  till  near  the  time  of  trial,  no  information  was  giv- 
en to  the  purchaser  that  the  bankrupt  was  heir  at  law  of 
the  testator,  but  the  title  of  the  assignees  appeared  to  have 

(n)  1  Marsh.  583.  See  Goodwin  r.  Lightbody,  1  Dan.  153  ;  Roper 
V.  Coombes,  6  Barn.  &  Aid.  584. 

.      (o)  Seward   r.  Willock,  5   East,  198;   1    Smith's  Rep.  390,   S.  C.  ; 
and  see  Radclifie  r.  "Warrington,  12  Yes.  jun.  326,  where  the  purchaser 
recovered  at  law. 
VOL.  I.  C4  (*433) 


^Qg  OF  THE  TIME  ALLOWED 

been  delivered  in,  on  the  supposition  of  the  bankrupt 
being  tenant  in  tail,  they  thought  that  the  defendant  had 
failed  in  making  good  the  agreement  on  his  part ;  and 
that  thereupon  a  right  of  action  at  law  had  accrued  to  the 
plaintiff.  How  far  the  title  since  communicated  might  in 
another  course  of  proceeding  in  another  place,  render  the 
present  proceeding  abortive  ;  and  whether  the  plaintiff 
might  not  be  ultimately  compelled  to  fulfil  his  agreement, 
was  not  for  them  in  that  action  to  decide. 

In  an  early  case(p)  the  Court  of  Chancery  carried  this 
doctrine  very  far ;  for  at  the  time  of  the  articles  for  sale, 
or  even  when  the  decree  was  pronounced,  Lord  Stourton, 
the  vendor,  could  not  make  a  title,  the  reversion  in  fee 
being  in  the  Crown  ;  and  yet  the  Court  indulged  him 
with  time  more  than  once  for  the  getting  in  the  title  from 
the  Crown,  which  could  not  be  effected  without  an  act  of 
parliament,  to  be  obtained  in  the  following  session :  how- 
ever, it  was  at  length  procured,  and  Sir  Thomas  Meers 
decreed  to  be  the  purchaser(I)  ;  and  even  at  this  day, 
although  the  Master  report  against  the  title,  yet  if  it  ap- 
pear that  the  seller  will  have  a  title  upon  getting  in  a  term, 
(*)or  procuring  letters  of  administration,  &c.  the  Court  will 
not  release  the  purchaser  ;  but  will  put  the  vendor  under 
terms  to  complete  his  title  speedily(/;/;).  Or  if  a  new  fact 
appear  which  enables  him  to  make  a  title  when  the  cause 
is  before  the  Court  on  further  directions,  the  contract  will 
be  enforced(9),  but  the  Court  will  not  extend   the  rule 

{p)  Lord  Stourton  v.  Sir  Thomas  Meers,  stated  in  2  P.  Wms.  631  ; 
and  see  Sheffield  v.  Lord  Mulgrave,  2  Ves.  jiin.  526  ;  Ormerod  v. 
Hardman,  5  Ves.  jun.  722. 

(pp)   Coffin  V.  Cooper,  14  Ves.  jun.  205. 

(q)   Esdaile  v.  Stephenson,  8  Aug.  1822,  MS.  supra,  p.  219. 

(I)  Note,  it  appears  that  Sir  Thomas  Meers  was  mortgagee  of  the 
estate  ;  (see  Sir  Thomas  Meers  v.  Lord  Stourton,  1  P.  Wms.  46,)  and 
it  is  therefore  probable  that  at  the  time  he  entered  into  the  contract  he 
was  aware  of  the  defects  in  the  title. 

(*434) 


TO  COMPLETE  THE  CONTRACT.  ^Q>y 

which  it  has  adopted  of  compelling  a  purchaser  to  take 
the  estate  where  a  title  is  not  made  till  after  the  contract, 
to  any  case  to  which  it  has  not  already  been  applied. 
Therefore  in  a  case  where  upon  a  creditor's  bill  filed  for 
sale  of  the  real  estate  of  a  trader,  the  usual  accounts 
were  decreed  and  a  sale  ordered,  and  the  estates  were 
accordingly  sold  ;  but  it  afterwards  appeared  that  the 
fact  of  the  trading  was  not  regularly  proved,  and  then  the 
cause  was  re-heard,  the  decree  upon  which  re-hearing  was 
also  open  to  objection  ;  the  purchaser  under  the  decree 
was  upon  motion  relieved  from  his  purchase,  although 
the  parties  were  willing  to  take  steps  to  remov^e  the 
objections(r). 

And  where  a  purchaser  enters  into,  or  proceeds  in 
a  treaty,  after  he  is  acquainted  with  defects  in  the  title, 
and  knows  that  the  vendor's  ability  to  make  a  good  title 
depends  on  the  defects  being  cured,  he  will  be  held  to 
his  bargain,  although  the  time  appointed  for  completing 
the  contract  is  expired  and  considerable  further  time  may 
be  required  to  make  a  good  title. 

Thus  in  a  c-dse(s),  where  it  was  agreed  upon  a  pur- 
chase, that  it  should  be  completed  on  the  5th  April  1792, 
(*)it  appeared  that  the  purchaser  had  applied  for  an  ab- 
stract at  the  latter  end  of  January,  or  the  beginning  of 
February,  which  not  being  sent  to  him,  he,  after  the  ex- 
piration of  the  time  for  the  completion  of  the  purchase, 
applied  for  his  deposit,  saying,  that  he  should  not  proceed 
in  his  purchase.  About  the  21st  of  April,  an  abstract 
was  sent  him,  and  it  appeared   that  a  suit  in  Chancery 

(r)  Lechmere  v.  Brasier,  2  Jac.  &  Walk.  2S7 ;  Dalby  v.  PuUen, 
3  Sim.  29  ;  1  Russ.  &  Myl.  296 ;  Coster  v.  Tumor,  1  Russ.  &  Myl. 
311. 

(s)  Pincke  r.  Cuiteis,  4  liro.  C.  C.  329 ;  and  see  Smith  v.  Burnaiii, 

2  Anstr.  527  ;  and   Paine  v.  Meller,  G  Ves.  jnn.  349  ;  Wardc  v.  Jef- 

Ibry,  4  Price,  295  ;  see  Smith  v.  Sir  Thomas  Dolman,  6  Bro.  P.  C. 

291,  by  Tomlins. 

(*435) 


608 


OF  THE  TIME  ALLOWED 


must  be  determined  before  a  title  could  be  made,  upoa 
which  he  again  declared  he  would  not  proceed  in  the  pur- 
chase, and  again  required  his  deposit.  In  Trinity  term 
he  brought  an  action  for  his  deposit,  and,  on  the  6th  of 
November,  the  bill  was  filed.  The  purchaser,  by  his  an- 
swer, stated  that  the  suit  was  still  depending,  and  that 
questions  of  law  had  arisen,  which  then  stood  for  argu- 
ment in  the  Court  of  King's  Bench. 

The  Lords  Commissioners  Ashhurst  and  Wilson  granted 
an  injunction,  which  was  continued  by  Lord  Rosslyn,  who 
said,  in  these  contracts  (sales  by  auction)  in  general,  the 
time  of  completing  the  contract  is  specified,  and  a  deposit 
is  paid  ;  and  if  the  title  is  not  made  out  by  the  time,  the 
vendee  is  entitled  to  take  back  his  deposit.  But  in  this 
case  the  vendee  ivas  apprised  of  the  title  depending  on  the 
ability  of  the  vendors  to  make  a  good  title,  which  itself  de- 
pended on  the  event  of  a  Chancery  suit,  and  was,  notwith- 
standing, willing  to  go  on  with  his  purchase  ;  there  had 
been  a  communication  of  the  delay  of  the  suit,  and  the 
present  bill  ivas  filed  after  great  delay  (I).  If  the  vendee 
had  called  for  his  deposit  at  the  end  of  the  time  limited 
for  completing  the  purchase,  and  insisted  he  would  not 
go  on  with  his  jmrchase,  the  Court  would  not  have 
compelled  him.  The  cause  was  afterwards  heard  before 
(*)the  Master  of  the  Rolls,  who  was  also  of  opinion,  that 
there  had  been  a  sufficient  communication  of  the  real 
state  of  the  delay,  and  that  the  purchaser  had  acquiesced 
in  it,  or  at  least  not  sufficiently  declared  his  dissent  to  go 
on  with  the  purchase  ;  and  therefore  it  was  referred  to 
the  Master  to  inquire  as  to  the  title. 

So  in  Seton  v,  Slade(?),  it  appeared  that  the  purchaser 

(/)    7  Ves.  jiin.  265.      See  TVood  v.  Bernal,  19  Ves.  22Q. 

(I)  The  judgment  shows  the  true  ground  of  the  decree  ;  but  accord- 
ing to  the  state  of  facts  in  the  report,  the  case  was  similar  to  that  of 
Lloyd  V.  Collet,  stated,  3upva,  p.  424. 

(*436) 


TO  COMPLETE  THE  CONTRACT.  kqq 

was  aware  of  the  objections  to  the  title  at  the  time  he 
purchased  the  estate,  and  afterwards  accepted  the  abstract 
w^ithin  a  few  days  of  the  time  appointed  for  completing 
the  contract.  He  had,  however,  previously  declared,  that 
if  the  title  was  not  made  out  by  the  time,  he  would  relin- 
quish the  contract ;  and  the  day  after  the  time  appointed 
he  actually  applied  for  his  deposit,  alleging  that  the  ab- 
stract, so  far  from  showing  a  right  in  the  vendor  to  convey, 
stated  merely  a  contract  for  the  purchase  by  him,  without 
noticing  a  suit  in  Chancery.  But  the  purchaser  having 
been  aware  of  the  objections  to  the  title,  and  having 
afterwards  received  thfe  abstract,  a  specific  performance 
was  decreed. 

Again(i^),  where  personal  representatives  of  a  trustee 
supposing  erroneously  they  had  power  to  sell,  entered  in- 
to a  contract  for  sale,  and  when  the  mistake  was  discover- 
ed, the  purchaser  was  apprised  that  the  sellers  would  take 
the  necessary  steps  to  make  a  title,  which  they  did,  but 
before  they  were  completed,  the  purchaser  brought  an 
action  for  his  deposit,  which  he  recovered,  and  then  the 
others  filed  a  bill  for  a  specific  performance  ;  it  was  held 
that  the  purchaser,  if  he  had  thought  fit,  might  have 
declined  the  contract  as  soon  as  he  discovered  that  the 
plaintiffs  had  no  title,  and  he  was  not  bound  to  wait  until 
they  had  acquired  a  title  ;  but  he  not  having  taken  that 
(*)course,  it  was  enough  that  at  the  hearing  a  good  title 
could  be  made. 

Although  a  treaty  may  have  lain  dormant  for  some 
time,  yet  if  the  contract  is  not  abandoned,  a  jierformauce 
will  be  decreed  in  specie. 

Thus  in  a  case(;i')  where,  upon  objections  to  a  title,  the 
treaty  had  proceeded  for  about  two  years,  when  the  ven- 

(«)   Hoggart  L'.  Scott,  1  Kuss.  &:  Myl.  293. 

(x)  Marquib  of  Hertford  v.  Boore,  5  Ves.  juii.  719.  See  Mihvard 
V.  Earl  of  Thanet,  5  Ves.  jun.  720,  ri.  (6). 

(*437) 


510 


OF  THE  TIME  ALLOWED 


dor's  solicitor  wrote,  calling  for  a  distinct  answer,  saying, 
that  otherwise  he  must  be  under  the  necessity  of  filing 
a  bill.  No  answer  was  returned  to  the  letter,  nor  was 
any  notice  given  that  the  purchaser  considered  the  con- 
tract as  abandoned ;  neither  had  he  brought  any  action 
for  the  deposit.  The  bill  was  filed  after  a  delay  of  about 
fourteen  months,  and  the  defendant  resisted  a  specific  per- 
formance on  the  ground  of  delay,  by  which,  he  stated,  he 
had  suffered  material  inconvenience,  having  purchased 
the  place  as  his  residence,  and  that  he  was  induced  to 
consider  the  contract  as  abandoned.  A  specific  perform- 
ance was  however  decreed. 

But  if  a  purchaser  object  to  the  title,  and  declare  he 
wall  not  complete  the  contract,  and  the  vendor  acquiesce 
in  this  declaration,  he  cannot  afterwards  clear  up  the  ob- 
jections to  his  title,  and  compel  the  purchaser  to  perform 
the  agreement.  This  was  decided  in  the  case  of  Guest  v. 
Homfray(?/).  The  purchaser  took  objections  to  the  title, 
and  was  informed  that  no  better  title  could  be  made ; 
whereupon  he  said,  he  would  not  proceed  in  the  pur- 
chase, and  afterwards  returned  the  abstract,  at  the  desire 
of  the  vendor,  at  the  same  time  acquainting  him  (the 
vendor)  that  he  (the  purchaser)  still  considered  the  con- 
tract was  at  an  end.  In  about  eight  months  after  this 
the  abstract  was  returned,  with  the  objections  answered, 
(*)and  the  bill  was  filed  upon  the  defendant  refusing  to 
complete  the  contract.  But  the  bill  was  dismissed,  al- 
though it  was  clear  that  the  purchaser  had  almost  all  the 
time  wished  to  be  off  the  bargain.  Lord  Alvanley,  then 
Master  of  the  Rolls,  said,  they  should  have  cautioned  the 
purchaser,  and  told  him  they  were  going  on  to  make  out 
a  title.  If  they  had  done  all  that,  and  shown  a  probable 
ground  to  the  purchaser  that  they  might  make  a  good 

(y)  5  Yes.  jun.  S18. 
(*43S) 


TO  COMPLETE  THE  CONTRACT. 


511 


title,  Lord  Alvanley  said,  he  should  perhaps  not  have 
thought  a  year  too  long. 

In  Watson  v.  Reid(2),  the  contract  was  in  June  1826, 
An  abstract  was  delivered,  and  a  correspondence  took 
place  with  respect  to  the  title.  On  the  7th  April  1827 
the  purchaser  gave  notice  that  he  objected  to  the  title, 
and  abandoned  the  contract;  and  on  the  1st  May  he 
demanded  a  return  of  the  deposit.  The  seller  refused  to 
return  it;  and  on  the  25th  April  1828  filed  a  bill  for  a 
specific  performance,  and  the  Master  of  the  Rolls  dis- 
missed it  with  costs,  upon  the  ground  of  unreasonable 
delay  in  filing  it. 

Where  circumstances  are  such  that  the  purchase-money 
cannot  be  paid  for  a  length  of  time,  as  if  the  purchaser 
die,  or  become  bankrupt  before  the  contract  be  carried 
into  effect,  and  his  executors,  or  assignees,  are  not  able 
to  get  in  the  assets  or  effects,  the  vendor  is  entitled  to 
require  the  contract  to  be  rescinded,  and  he  will  be  al- 
lowed his  costs(«)  ;  or  he  may  demand  a  specific  per- 
formance ;  and  if  the  defendants  are  unable  or  unwilling 
to  perform  the  contract,  that  the  estates  may  be  resold ; 
and  if  the  purchase-money  arising  by  the  resale,  together 
with  the  deposit,  shall  not  amount  to  the  purchase-money, 
(*)that  the  defendant  may  pay  the  deficiency. — A  bill  for 
the  latter  purposes  was  filed  by  a  vendor  against  the 
assignees  of  a  bankrupt,  and  a  decree  was  made  for  re- 
sale. The  deficiency  upon  that  resale  was  5,016/.  ;  and 
the  cause  coming  on  for  further  directions,  Lord  Rosslyn 
directed  that  sum  to  be  proved  under  the  commission  ; 
saying,  the  whole  purchase-money  was  the  debt,  and  the 
vendor  had  a  lien  on  the  estate(6)  ;  which  proving  by 

(r)    1  Russ.  &  Myl.  236. 

(a)  Mackrethv.  Marlar,  1  Cox,  259;  Cox's  n.(l)  to  2  P.  Wms.  67; 
Whittaker  v.  Whittaker,  4  Bro.  C.  C.  31.  See  Sir  James  Lowlher  v. 
Lady  Andover,  1  Bro.  C.  C.  396 ;  Dickenson  v.  Heron,  infra,  ch.  10. 

(6)  Vide  supra,  ch.  1. 

(*439) 


512  OF  THE  TIME  ALLOWED 

the  resale  deficient,  the  residue  was  to  be  proved  under 
the  commissioii(f). 

In  Wright  v.  Wellesley(f/),  upon  a  sale  it  was  agreed 
that  part  of  the  purchase-money  should  be  secured  by 
mortgage.  There  was  a  decree  for  a  specific  perform- 
ance, and  a  conveyance  and  mortgage  were  directed  to 
be  executed,  and  further  directions  were  reserved.  The 
Master  made  his  report,  by  which  it  appeared  that  the 
purchaser  had  made  default  in  bringing  in  the  proper 
deeds,  and  he  found  what  was  due,  which  was  regularly 
demanded,  but  not  paid.  The  plaintiff,  the  seller,  pre- 
sented a  petition,  which  came  on  with  the  further  direc- 
tions, praying  the  sale  of  the  property,  in  consequence 
of  the  purchaser's  default.  It  was  objected  that  this 
could  not  be  done ;  and  that  at  all  events  a  supplemental 
bill  was  necessary  ;  but  the  Vice-Chancellor  made  the 
order  as  prayed  for  :  as  the  defendant  had  evaded  the 
decree  of  the  Court,  he  would  give  the  relief  required  by 
the  new  state  of  circumstances,  and  he  thought  that  the 
petition  was  regularly  presented. 

In  a  late  case,  where  an  estate  was  sold  by  auction,  in 
order  to  pay  off  incumbrances,  under  the  usual  conditions, 
and  the  purchase  was  to  be  completed  on  the  25th  of 
March  1805,  the  estate  was  sold  for  123,000/.  and  the 
(*)purchaser  paid  only  4,000/.  as  a  deposit,  when  he  ought 
to  have  paid  24,000/.  A  short  time  previously  to  Lady- 
day  he  wrote  a  letter  to  the  vendors,  acknowledging  his 
inability  to  pay,  and  requesting  them  to  join  in  a  resale, 
offering  to  pay  any  loss  by  the  second  sale.  This  they 
refused  ;  and  he  not  having  the  money  ready,  on  the 
27th  of  March  1805,  filed  a  bill  for  a  specific  perform- 
ance, evidently  to  gain  time.  The  vendors  filed  a  cross- 
bill ;  and  afterwards  the  purchaser  became  a  bankrupt, 

(c)  Bowles  V.  Rogers,  6  Ves.  jun.  95.  n. 
\d)  V.  C.  26  Feb.  1833.  MS. 

(*440) 


TO  COMPLETE  THE  CONTRACT. 


513 


when  the  causes  were  revived.  The  expenses  of  the 
vendors,  in  payment  of  the  auction-duty,  fee.  were  very 
considerable.  The  cross  cause  came  on  first ;  the  assignees 
of  course  could  not  bind  themselves  to  pay  the  money ; 
and  the  contract  was  decreed  to  be  delivered  up  and  can- 
celled, so  that  the  vendors  became  entitled  to  the  4,000/. 
deposit(c). 


We  are  now  to  consider  whether  equity  will  permit  the 
parties  to  make  time  the  essence  of  the  contract. 

In  Williams  v.  Thompson  or  Bonhara(/),  the  bill  was 
to  carry  into  execution  the  trusts  of  a  will,  and  for  a  spe- 
cific performance  of  an  agreement  by  Bonham,  to  pur- 
chase a  real  estate  of  the  defendants.  By  the  agreement, 
dated  the  9th  of  July  1778,  it  was  particularly  expressed, 
"  that  in  case  a  good  title  to  the  premises,  discharged 
from  all  claims  and  demands  whatsoever,  should  not  be 
made  out  to  the  satisfaction  of  Bonham  within  three 
years  from  the  date  thereof,  the  agreement  thereby  made, 
so  far  as  concerned  the  purchase  of  the  premises  (for 
the  agreement  contained  other  stipulations),  should  from 
thenceforth  become  void."  The  defendant  was  always 
ready  to  have  completed  his  purchase,  but  the  trustees 
(*)under  the  will  were  incapable  of  making  out  a  title 
without  the  aid  of  equity,  and  for  that  purpose  the  bill  in 
question  was  filed  in  February  1781.  The  cause  came 
to  a  hearing  on  the  29th  of  June  1782,  when  the  defend- 
ant (Bonham)  insisted,  that  the  title  not  having  been 
made  out  at  the  time  mentioned  in  the  agreement,  he  was 
discharged  from  his  purchase.  But  Lord  Thurlow  was 
of  opinion,  that  the  time  fixed  by  the  articles  for  making 
a  title  to  the  defendant  was  only  formal,  and  not  of  the 
essence  of  the  agreement  ;  and,  as  appears  by  the  Regis- 

(c)  Steadman  r.  Lord  Galloway,  et  e  contra.  Rolls,  9(h  Feb.  180S. 
(/)4  Bro.  C.  C.  331,  cited;  Newl.  Contr.  238,  stated.     See  the 
case  in  Reg.  Lib.  B.  1781,  fol.  564. 

VOL.  I.  65  ,   (*441) 


e|  ft  OF  THE  TIME  ALLOWED 

trar's  book,  he  declared,  that  the  three  years  being  expir- 
ed was  not  a  sufficient  objection  to  the  agreement  being 
performed. 

This  case  depends  so  much  on  its  own  complicated 
circumstances,  as  scarcely  to  admit  of  being  cited  as  an 
authority  which  should  rule  any  other  case.  I  find,  from 
the  Registrar's  book,  that  it  was  impossible  to  make  a 
title  without  a  decree.  The  agreement,  which  was  very 
long  and  special,  stated  all  the  facts  ;  and  it  was  expressly 
stipulated,  that  the  trustees  should  use  their  utmost  en- 
deavors to  obtain  a  decree,  and  the  purchaser  was  im- 
mediately let  into  possession.  Now  the  bill  was  filed  be- 
fore the  expiration  of  the  three  years,  no  laches  was  imput- 
ed to  the  trustees,  and  it  did  not  appear  that  the  pur- 
*chaser  had  sustained  any  loss,  or  been  put  to  any  inconve- 
nience. It  would  therefore  have  been  a  strong  measure 
to  hold,  that  the  time  was  of  the  essence  of  the  contract. 
The  purchaser  entered  into  the  contract  with  full  know- 
ledge of  all  the  obstacles  in  the  way  of  making  a  title  ; 
and  unless  the  purchase  was  completed,  there  was  no 
mode  of  indemnifying  the  trustees  for  the  expense  incur- 
red by  the  Chancery  suit. 

In  the  case  of  Gregson  v.  Riddle(^),  which  was  also 
(*)before  Lord  Thurlow,  the  agreement  was  for  a  partic- 
ular day  ;  with  a  proviso,  that  in  case  the  title  should  not 
be  approved  in  two  months,  the  agreement  was  to  be  void 
and  of  no  effect.  Tiiere  was  an  outstanding  legal  estate, 
which  could  not  be  got  in  by  that  time.  A  bill  was  filed 
for  a  specific  performance.  The  defendant  resisting,  a 
reference  was  directed,  to  see  whether  a  good  title  could 
be  made  ;  Lord  Loughborough,  then  Lord  Commissioner, 
expressing  an  opinion  that  the  terms  of  the  agreement 
were  complied  with(l).     The  report  was  in  favor  of  the- 

(0)  7  Vep.  jun.  268,  cited. 

(1)  The  stipulation  was,  that  in  case  the  title  should  not  he  approved 

(*442) 


TO  COMPLETE  THE  CONTRACT. 


515 


title.  The  cause  coming  on  before  Lord  Thurlow,  the 
performance  was  still  resisted.  Lord  Thurlow  said,  it  had 
been  often  attempted  to  get  rid  of  agreements  upon  this 
ground,  but  never  with  success.  The  utmost  extent  was 
to  hold  it  evidence  of  a  waver  of  the  agreement ;  but  it 
never  was  held  to  make  it  void.  Mr.  Mansfield,  for  the 
defendant,  said,  the  intention  was  clearly  to  make  it  void; 
and  that  it  would  be  necessary  to  insert  a  clause,  that  not- 
withstanding the  decision  of  the  Court  of  Chancery,  it 
should  be  void.  Lord  Thurlow  said,  such  a  clause  might 
be  inserted  ;  and  the  parlies  loould  be  just  as  forward  as 
they  were  then. 

On  this  dictum,  it  must  be  remarked,  that  the  case  did 
not  call  for  it,  as  the  agreement  appears  to  have  been 
substantially  performed  within  the  time.  And  it  is  said, 
that  in  Potts  v.  Webb,  before  Lord  Thurlow,  it  being  part 
of  the  terms  that  the  purchase  should  be  completed  by 
a  certain  time,  his  Lordship  thought  that  a  good  reason 
for  not  decreeing  a  specific  performance(/i).  At  the  same 
(*)tirae  it  must  be  admitted,  that  Lord  Thurlow  entertain- 
ed a  floating  opinion,  that  time  could  not  in  general  be 
made  of  the  essence  of  the  contract.  It  does  not  appear, 
however,  that  any  case  ever  came  before  him  in  which  he 
was  called  upon  to  decide  the  point,  and  his  opinion  has 
not  been  followed   in  subsequent  cases. 

For  in  Lloyd  v.  Co!let(i),  in  which  the  case  of  Greg- 
son  V.  Riddle  was  cited.  Lord  Chancellor  Loughborough 
said,  the  conduct  of  the  parties,  inevitable  accident,  &c. 
might  induce  the  Court  to  relieve  ;  but  it  was  a  different 

(/i)   4  Bro.  C.  C.  330,  cited. 

(t)  4  Bro.  C.  C.  469  ;  4  Ves.  jun.  689  ;  note  stated  siii^ra. 


of  by  the  purchaser's  counsel  within  two  months,  the  articles  should  be 
void.  The  difficulty  upon  the  title  arose  upon  a  settlement  which  the 
seller  insisted  was  voluntary,  and  not  upon  a  mere  outstanding  legal 
estate.  The  seller  insisted  upon  being  at  liberty  to  rescind  the  con- 
tract, under  the  clause  in  the  articles. 

(•*443) 


tig  OJ'  THE  TIME  ALLOWED 

thing  to  say  the  appointment  of  a  day  was  to  have  no 
effect  at  all,  and  that  it  was  not  in  the  power  of  the  parties 
to  contract,  that  if  the  agreement  was  not  executed  at 
a  particular  time,  the  parties  should  be  at  liberty  to 
rescind  it. 

And  in  the  late  case  of  Seton  v.  Slade(A:),  Lord  Eldon 
said,  he  inclined  much  to  think,  notwithstanding  what 
was  said  in  Gregson  v.  Riddle,  that  time  may  be  made 
the  essence  of  the  contract(239). 

The  case  under  consideration  has  been  assimilated  to  a 
mortgage,  where,  although  the  parties  may  have  expressly 
stipulated,  that  if  the  money  be  not  paid  at  a  particular 
time,  the  mortgagor  shall  be  foreclosed,  yet  equity  will 
permit  him  to  redeem,  in  the  same  manner  as  if  no  such 
stipulation  had  been  entered  into.  There  does  not  appear 
to  be  any  analogy  between  the  cases.  In  a  mortgage  such 
a  declaration  is  inserted  by  the  mortgagee  for  his  own 
advantage ;  but  as  the  land  is  merely  a  security  for  the 
debt,  equity  rightly  considers  that  a  mortgagee  ought  only 
to  require  his  principal  and  interest,  and  not  to  obtain 
(*)the  estate  itself,  by  taking  advantage  of  the  necessities 
of  the  mortgagor.  Once  a  mortgage  and  always  a  mort- 
gage, has  therefore  become  a  maxim  ;  and  under  this  axiom 
equity  is  indeed  administered  ;  the  parties  being  put  in 
possession  of  their  respective  rights  without  detriment  to 
each  other.  The  same  reasoning  seems  to  apply  to  relief 
against  a  penalty.  But  in  an  agreement  for  sale  of  an 
estate,  where  it  is  expressly  declared  that  the  contract 
shall  be  void  if  a  title  cannot  be  made  by  a  stated  time, 
the  parties  themselves  have  mutually  fixed  upon  a  time  ; 
the  bona  fides  of  such  a  transaction  seems  to  be  a  bar  to 

{h)  7  Yes.  jun.  265 ;  and  see  Lewis  v.  Lord  Lechmere,  10  Mod. 
503.  See  also  3  Yes.  jun.  693  ;  12  Yes.  jun.  333  ;  13  Yes.  jun.  289  ; 
2  Mer.  140  ;  Levy  v.  Lindo,  3  Mer.  81  ;  Ward  v.  Jeffery,  4  Price,  294. 

(239)  See  Benedict  v.  Lynch,  1  Johns.  Ch.  Rep.  374. 
(*444) 


TO  COMPLETE  THE  CONTRACT.  ^J'^ 

the  interference  of  a  court  of  equity ;  and  if  the  contract 
be  vacated  by  virtue  of  the  agreement,  the  parties  will  still 
be  in  the  possession  of  their  respective  rights.  We^may 
therefore,  perhaps,  venture  to  assert,  that  if  it  clearly 
appear  to  be  the  intention  of  the  parties  to  an  agreement, 
that  time  shall  be  deemed  of  the  essence  of  the  contract, 
it  must  be  so  considered  in  equity(/).  In  the  late  case  of 
Hudson  V.  Bartram(?w),  the  Vice-Chancellor  (Sir  John 
Leach)  said,  that  the  principle  was  admitted  now  that 
time  may  be  made  of  the  essence  of  the  contract.  Why 
are  not  parties  to  insert  such  a  stipulation  in  their  con- 
tract ?  It  is  difficult  to  understand  how  the  doubt  arose, 
but  it  is  now  at  an  end  ;  and  in  the  later  case  of  Williams 
V.  Edwards,  where  it  was  stipulated  by  the  contract  that 
if  the  counsel  of  the  purchaser  should  be  of  opinion  that 
a  marketable  title  could  not  be  made  by  the  time  thereby 
appointed  for  the  completion  of  the  purchase,  the  agree- 
ment should  be  void,  and  delivered  up  to  be  cancelled. 
The  counsel  of  the  purchaser  was  of  opinion  that  the 
seller  was  only  tenant  for  life  of  certain  shares  of  the 
estate,  and  a  bill  filed  by  the  purchaser  for  a  specfic  per- 
formance, (*)with  a  compensation,  was  dismissed  with 
costs(?i). 


It  remains  to  observe,  that  lohere  no  time  is  limited  for 
the  performance  of  the  agreement,  the  cases  considered 
under  the  first  division  in  this  chapter  will  assist  the  stu- 
dent in  forming  a  judgment  in  w^iat  instances  equity  will 
assist  a  party  who  has  been  guilty  of  latches,  although 
every  case  of  this  nature  must  in  a  great  measure  depend 
upon  its  own  particular  circumstances.  The  cases  classed 
under  the  second  division  apply,  how^ever,  with  greater 

(/)  See  Appendix,  No.  6. 

(hj)  12  Dec.  1818,  MS.  ;  S.  C.  3  Madd.  440;  and  see  Boehm  r. 
Wood,  1  Jac.  &  Walk.  419. 

(>i)  Williams  v.  Edwards,  2  Sim.  78. 

(*445) 


^JQ  OF  THE  TIME  ALLOWED  TO  COMPLETE,  &c. 

force  to  cases  where  no  time  is  limited  than  to  those  where 
a  day  is  fixed,  for  in  the  former  cases,  the  Court  has  not 
to  struggle  against  an  express  stipulation  of  the  parties. 

A  case  came  before  the  Lords  Commissioners  in  1792(o)j 
where  no  time  was  limited  for  performing  the  agreement. 
The  plaintiff  was  one  of  two  devisees  in  trust  to  sell,  and 
pay  debts,  and  had  alone  sold  the  estate(I),  and  entered 
into  articles  with  the  defendant.  The  co-trustee  afterwards 
refused  to  join  ;  and  there  was  a  mortgagee  who  refused  to 
be  paid  off.  Neither  of  these  circumstances  was  disclosed 
to  the  purchaser,  and  upon  this  delay  in  the  title  he  pro- 
ceeded to  bring  his  action  against  the  vendor  for  a  breach 
of  the  agreement.  The  plaintiff  brought  his  bill  to 
compel  a  specific  performance,  and  to  have  the  co-trustee 
join  ;  and  the  mortgage  redeemed,  and  to  stay  the  action. 
The  defendant  suffered  an  injunction  to  go  against  him  for 
want  of  an  answer  ;  and  having  afterwards  answered, 
a  motion  was  made  to  dissolve  the  injunction  ;  and  the 
(*)cause  shown  by  the  plaintiff  was,  the  possibility  of  mak- 
ing a  good  title  by  this  very  suit.  The  Court  held  the 
purchaser  bound,  and  continued  the  injunction. 

In  this  case  it  appears  from  the  Registrar's  book,  that 
the  purchaser  insisted  on  his  purchase,  and  that  the  in- 
junction should  be  dissolved  ;  which  was  certainly  a  very 
important  feature  in  the  cause.  It  was  not  the  case  of  a 
man  merely  seeking  to  recover  his  deposit.  It  must,  how^ 
ever,  be  repeated,  that  it  is  impossible  to  lay  down  any 
general  rule  applicable  to  cases  where  no  time  is  appoint- 
ed for  performing  the  agreement.  Indeed,  throughout 
this  chapter,  it  has  been  found  impossible  to  treat  the  sub- 
ject of  it  in  an  elementary  manner. 

(0)  Tyrer  v.  Artingstall,  Newl.   Contr.  236.     See  the  case  in  Regv 
Lib.  B.  1792,  fo.  28,  nom.  Tyrer  v.  Bailey. 

(1)  The  estate  was  sold  by  auction  tvith  the  concurrence  of  the  other 
trustee.     The  plaintiff,  however,  alone  signed  the  agreement. 

(*446) 


[  519  J 


OCHAPTER  IX. 

OF  THE  ABSTRACT  AND  CONVEYANCE  :  THE  ASSIGNMENTS 
OF  TERMS,  ATTESTED  COPIES  AND  COVENANTS  FOR 
TITLE,  TO  WHICH  A  PURCHASER  IS  ENTITLED  :  OF 
SEARCHING  FOR  INCUMBRANCES  :  AND  OF  RELIEF  IN 
RESPECT  OF  INCUMBRANCES. 


SECTION  I. 
Of  the  Abstract  and  Conveyance, 


The  vendor  must  at  his  own  expense  furnish  the  pur- 
chaser with  an  abstract  of  his  muniments(I),  and  deduce 
a  clear  title  to  the  estate.  The  abstract  ought  to  mention 
every  incumbrance  whatever  affecting  the  estate,  and 
should,  therefore,  contain  an  account  of  every  judgment 
by  which  it  is  affected(«)  ;  but  equity  considers  it  com- 
plete whenever  it  appears,  that  upon  certain  acts  done, 
the  legal  and  equitable  estates  will  be  in  the  purchaser ; 
which  may  be  long  before  the  title  can  be  completed(6). 
Although  the  estate  is  sold  free  from  incumbrances,  and 
the  abstract  shows  an  amount  of  incumbrance  exceeding 


fc) 


(a)   Richards  v.  Barton,  1  Esp.  Ca.  268. 

(6)   See  8  Ves.  jun.  436  ;  and  1  Jac.  &  Walk.  421. 


(I)  Formerly  the  title-deeds  themselves  were  delivered  to  the  pur- 
chaser, and  his  solicitor  prepared  the  abstract  at  his  expense  ;  and  the 
abstract  was  compared  with  the  title  deeds  by  the  counsel  before  whom 
it  was  laid.     See  Temple  v.  Brown,  6  Taunt.  60. 

(*447) 


^20  °^  '^"^  CONVEYANCE. 

the  purchase-money,  yet  it  must  be  considered  that  the 
seller  can  make  a  good  title(c).  This  rule  is  properly 
(*)confined  to  cases  where  the  seller,  and  persons  who  are 
trustees  for  him,  can  make  a  title  ;  for  if  the  concurrence 
of  a  stranger  is  necessary,  and  he  is  not  bound  to  join, 
the  abstract  cannot  be  deemed  perfect  until  it  shows  that 
he  has  given  perfection  to  the  title(J). 

The  abstract  is  delivered  for  the  following  purposes  : 
1st,  That  the  purchaser  may  see  whether  the  title  is  such 
as  he  will  accept.  He  has  also  a  right  to  it  after  he  has 
taken  an  opinion,  in  order  to  take  another  opinion  in  case 
he  is  not  satisfied  with  that,  and  for  the  purpose  of  taking 
further  objections,  and  of  further  considering  the  title.  He 
must  have  it  too  for  another  purpose,  to  assist  him  in  pre- 
paring his  conveyance,  that  he  may  see  who  must  be  made 
parties,  what  form  of  conveyance  is  expedient,  what  par- 
cels are  to  be  inserted,  and  the  like(e).  As  to  the  general 
property  in  the  abstract,  it  is  hard  to  say  who  may 
have  it ;  while  the  contract  is  open,  it  is  neither  in  the 
vendor  nor  in  the  vendee  absolutely  ;  but  if  the  sale  goes 
on,  it  is  the  property  of  the  vendee  ;  if  the  sale  is  broken 
off,  it  is  the  property  of  the  vendor.  In  the  mean  time 
the  vendee  has  a  temporary  property,  and  a  right  to  keep 
it,  even  if  the  title  be  rejected,  until  the  dispute  be  finally 
settled,  for  his  own  justification,  in  order  to  show  on  what 
ground  he  did  reject  the  title(y).  If  the  purchase  go  off, 
not  only  is  the  abstract  to  be  returned,  but  no  copy  to 
be  kept,  lest  it  should  be  used  for  a  mischievous  pur- 
pose(^)  ;  and  although  the  purchaser  pays  for  the  opi- 


(c)   Townsend  v.  Champernown,  1  You.  &  Jeiv.  449. 

{d)  Lewinv.  Guest,  1  Russ.  325. 

(e)  See  2  Taunt.  276,  per  Mansfield,  C.  J. 

(/)   2  Taunt.  278,  per  Chambre,  J. 

(g)  2  Taunt.  277,  per  Lawrence,  J. 

(*448) 


OF  THE  CONVEYANX'E.  t^l 

nion,  yet,  for  the  same  reason,  that  ought,  it  should  seem, 
to  be  returned  with  the  abstract(A). 

In  a  case  where  the  purchaser  returned  the  abstract  to 
(*)the  seller,  to  answer  the  queries  and  opinion  of  counsel, 
it  was  held,  that  he  (the  purchaser)  might  maintain  tro- 
ver against  the  seller  for  the  abstract,  although  the  seller 
himself  might  ultimately  be  entitled  to  the  abstract.  The 
temporary  property  of  the  purchaser  in  the  abstract  was 
sufficient  to  enable  him  to  maintain  the  action(«). 

The  seller  is  bound  to  produce  the  deeds,  in  order  that 
the  abstract  may  be  examined  with  them,  although  they 
are  not  in  his  possession,  and  the  purchaser  is  not  to  be 
entitled  to  the  custody  of  them.  But,  if  they  are  in  the 
possession  ef  a  third  person,  the  purchaser's  solicitor,  it 
seems,  must  send  to  the  place  where  the  deeds  are,  in 
order  to  examine  them  with  the  abstract,  and  the  seller 
must  pay  the  expense  of  the  journey(j)(I). 

The  strict  rule  seems  to  be,  that  the  vendor  must  pro- 
cure the  fee  to  be  vested  either  in  himself,  or  a  trustee 
for  him  ;  and  that  a  purchaser  is  not  compellable  to  bear 
the  expense  of  a  long  conveyance,  on  account  of  the  legal 

(/i)   See  and  consider  2  Taunt.  270,  per  Mansfield,  C.  J. 
(t)   Roberts  v.  Wyatt,  2  Taunt.  26S. 
(j)   Sharp  I'.  Page,  Rolls,  1815,  MS. 

(I)  Sale  by  assignees  of  a  bankrupt.  A  settlement  of  1763  was  in 
the  possession  of  a  former  purchaser,  and  there  was  only  a  covenant  to 
produce  a  copy  of  it.  A  bill  was  filed  by  the  assignees  for  a  specific 
performance.  The  purchaser  was  informed  that  the  settlement  was  in 
the  possession  of  a  gentleman  in  the  country,  and  mi^hl  be  seen  there. 
He  was  ready  to  covenant  to  produce  it.  The  purchaser  submitted  to 
the  Master  that  it  was  the  duty  of  the  sellers  to  produce  the  deeds 
stated  in  the  abstract  before  the  Master,  or  to  the  purchaser's  solicitor 
in  London.  The  Master  stated,  that  he  would  make  inquiry  of  con- 
veyancers, what  the  practice  in  such  cases  was,  and  afterwards  decided, 
that  the  purchaser's  solicitor  ought  to  send  to  Baldock,  where  the  deeds 
were,  to  compare  the  abstract  with  the  settlement,  but  that  the  sellers 
ought  to  pay  the  expenses  of  such  journey. 

VOL.  I.  60  (*449) 


522 


OF  THE  CONVEYANCE. 


estate  having  been  outstanding  for  a  length  of  time,  or  of 
the  estate  being  subject  to  incumbrances  vi'hich  are  to  be 
paid  off(k).  It  is  not,  however,  very  usual  to  insist  upon 
(*)this,  unless  the  title  cannot  be  perfected  without  a  pri- 
vate act  of  parliament ;  in  which  case,  the  expense  of  ob- 
taining it  is  always  borne  by  the  vendor. 

Unless  there  be  an  express  stipulation  to  the  contrary, 
^he  expense  of  the  conveyance  falls  on  the  purchaser(/)  ; 
who,  as  we  have  already  seen,  must  in  that  case  prepare 
and  tender  the  conveyance(wi).  Tlie  expense  attending 
the  execution  of  the  conveyance  is,  however,  always  borne 
by  the  vendor,  but  of  course  he  does  not  pay  the  costs  of 
the  purchaser's  attorney. 

If  the  estate  be  copyhold,  the  purchaser  must  bear  the 
expense  both  of  the  surrender  to  him  and  of  his  admis- 
sion(/?) ;  and  a  vendor  is  not  obliged  to  pay  the  fine  due 
on  the  admission  of  the  vendee,  although  he  covenant  to 
surrender  and  assure  the  copyholds  at  his  own  costs  and 
charges(o)  ;  because,  it  is  said,  the  title  is  perfected  by 
the  admittance,  and  the  fine  is  not  due  till  after(p). 

If  a  draft  be  altered  by  either  party,  although  the  al- 
teration be  such  as  would  be  supported  by  the  Courts, 
yet  the  draft  as  altered  should  not  be  ingrossed  without  a 
communication  being  first  made  to  the  other  party(</). 

{k)  See  1  H.  Blackst.  280. 

(/)  See  2  Ves.  jun.  155  ;  and  note,  this  is  the  universal  practice  of 
the  Profession. 

(»n)    Supra,  ch.  4. 

{n)  Drury  v.  Man,  1  Atk.  95,  Sanders's  edition. 

(o)    Graham  v.  Sime,  1  East,  632. 

(p)  Dalton  V.  Hammond,  4  Co.  28  a  ;  Rex  v.  Lord  of  the  Manor 
of  Hendon,  2  Term  Rep.  484  ;  and  see  Fishe  v.  Rogers,  1  Rol.  Abr. 
606,  (A.)  pi.  1  ;  3  Burr.  1543  ;  Lex.  Cust.  p.  163  ;  Wood's  Inst.  p. 
137  ;  Gilb.  Ten.  205 ;  1  Watk.  Copy.  286  ;  sed  qxu  and  see  Ualton  v. 
Hammond,  Cro.  Eliz.  779  ;  Mo.  622,  pi.  851  ;  and  supp.  to  Co.  Copy, 
s.  10  ;  and  Parkins  v.  Titus,  Mg. 

(9)   See  Staines  V.  Morris,  1  Yes.  &  Bea.  15. 

(*450) 


OF  THE  CONVEYANCE. 


523 


A  purchaser  has  a  right  to  require  the  vendor  himself 
to  surrender  the  estate,  if  copyhold,  and  to  execute  the 
conveyance,  if  freehold  ;  and  he  cannot  be  compelled  to 
accept  either  a  surrender  or  conveyance,  under  a  power 
(*)of  attorney,  unless  an  actual  necessity  appears  for 
it(r)  ;  for  it  tends  to  multiply  his  proofs,  and  he  may  be 
put  under  difficulties  by  these  means ;  the  letter  of  attor- 
ney may  be  lost,  and  the  party  is  obliged  to  prove  the  ex- 
ecution of  it(5).  A  letter  of  attorney  may  be  revoked 
the  next  moment,  that  revocation  may  be  notified  to  the 
attorney  without  the  purchaser's  knowledge,  and  then  the 
conveyance  would  be  void ;  and  the  purchaser's  only 
remedy  would  be  a  suit  in  equity (^).  This  was  said  by 
Lord  Hardwicke,  but  the  doctrine  of  later  times  is,  that  a 
power  of  attorney  given  for  valuable  consideration  can- 
not be  revoked (m). 

A  further  objection  is,  that  the  vendor  may  be  dead  at 
the  time  the  power  is  exercised,  and  in  that  case  the  ex- 
ecution would  be  void,  as  a  power  of  this  nature  expires 
by  the  death  of  the  principal(?(;)(241).  For  this  reason, 
where  a  purchaser  chooses  to  permit  the -conveyance  to 
be  executed  by  attorney,  the  attorney  should  execute  a 
declaration  of  trust,  that  he  will  stand  possessed  of  the 
purchase-money  in  trust  for  the  purchaser,  until  it  either 
appear  by  satisfactory  evidence,  that  the  vendor  was  alive 
at  the  time  of  the  execution  of  the  deed,  or  if  he  shall  be 
dead,  until  the  estate  is  duly  conveyed  to  the  purchaser. 

(r)  Mitchel  v.  Neale,  2  A'^es.  679 ;  Richards  v.  Barton,  1  Esp.  Ca. 
268  ;  and  see  ibid.  115  ;  Noel  v.  Weston,  6  Madd.  50. 

{s)  See  Johnson  v.  Mason,  1  Esp.  Ca.  89. 

(t)  Per  Lord  Hardwicke,  in  casu  Mitchel  v.  Neale,  icbi  sup* 

{u)  Walsh  V.  Whitcomb,  2  Esp.  Ca.  665. 

{w)  Shipman  v.  Thompson,  Wynne  v.  Thomas,  Willes,  105,  565  ; 
Wallace  v.  Cooke,  5  Esp.  Ca.  117. 

(241)  The  grantor  of  land  is  presumed  to  be  alive  until  the  contrary 
is  shewn.     Baliifi's  Les.  v.  Bigeloic,  1  Peter's  Rep.  452. 

(M51) 


524 


OF  THE  CONVEYANCE. 


As  a  purchaser  cannot  be  required  to  take  a  conveyance 
executed  by  attorney,  so,  on   the  other  hand,  if  a  vendor 
only  covenant  to  surrender  or  convey  lands  to  a  purchaser 
upon  request,  he  is  not  compellable  to  appoint  an  attorney 
for  that  purpose(a;). 

(*) Where  the  estate  lies  in  a  register  county,  the  con- 
veyance should  be  registered  as  soon  as  it  is  executed. 
Mr.  Milliard  remarks(3/)  that,  by  the  statutes  for  regis- 
try, there  is  no  time  limited  for  registering  deeds  ;  and 
that  it  is  therefore  obvious  from  an  inspection  of  the  acts, 
how  necessary  it  is,  that  deeds  should  be  registered  imme- 
diately on  their  being  executed :  to  enforce  this  the  more 
strongly,  he  adds,  it  may  not  be  useless  to  consider,  if  a 
subsequent  conveyance  or  mortgage  should  be  executed 
for  a  valuable  consideration,  and  from  an  almost  momen- 
tary inattention  or  delay  of  the  first  vendee  or  mortgagee, 
in  not  immediately  registering,  the  second  vendee  or 
mortgagee  should  register  first  ;  whether,  in  such  case, 
the  first  vendee  or  mortgagee  doth  not  thereby  become  in 
a  worse  situation  than  he  would  have  been  by  law,  in  case 
the  registering  acts  had  not  been  made. 

It  is  clear  that,  in  the  case  put,  the  subsequent  pur- 
chaser or  mortgagee,  unless  he  had  notice,  would  prevail 
over  the  first  vendee  or  mortgagee.  And  it  must  be  re- 
marked, that,  by  delaying  to  register  his  conveyance,  a 
purchaser  gives  a  prior  incumbrancer,  who  may  have 
neglected  to  register  his  incumbrance,  an  opportunity  of 
retrieving  his  error,  and  thereby  establishing  his  demand 
on  the  estate  ;  for  the  acts  only  say  that  deeds  shall  be 
void,  unless  such  memorial  thereof  is  registered,  as  by 
the  acts  is  directed,  before  the  registeritig  the  memorial 
under  which  the  subsequent  pw  chaser  claims(z). 

It  appears,  therefore,  that  there  are  two  cogent  reasons 

(r)    Symtns  v.  Lady  Smith,  Cro.  Car.  299  ;   Godb.  446. 

((/)   N.  (2)   to  Shep.  Touch.  116. 

(«)    Vide  infra  in  this  chapter,  and  chaptei  16. 
(*452) 


OF  ASSIGNMENTS  OF  TERMS.  toc 

why  a  memorial  of  the  conveyance  should  be  duly  re- 
gistered immediately  after  the  execution  of  the  conveyance; 
the  one,  that  a  prior  incumbrancer  might,  during  the  de- 
lay, register  his  incumbrance  ;  the  other,  that  the  delay 
(*)might  give  an  unprincipled  vendor  an  opportunity  of 
selling  the  estate  to  a  bona  fide  vendee  without  notice  ; 
who.  if  he  registered  his  deeds  before  the  registry  of  the 
first  conveyance,  would  certainly  prevail  against  the  first 
purchaser. 

SECTION  II. 
Of  Assignments  of  Terms. 


A  PURCHASER  may  require  an  assignment  of  all  out- 
standing terms,  of  which  he  could  avail  himself  in 
ejectment,  to  attend  the  inheritance  ;  and  if  the  purchaser 
leave  them  outstanding,  he  may  not,  perhaps,  have  the 
full  enjoyment  of  his  estate  without,  at  some  future  pe- 
riod, being  himself  at  the  expense  of  getting  them  in  : 
for  even  a  mortgagee  would  be  very  unwilling  to  advance 
money  on  the  estate,  unless  the  terms  were  assigned,  lest 
a  subsequent  mortgagee  or  purchaser,  without  notice, 
should  obtain  an  assignment  of  them,  and  so  overreach 
the  prior  mortgage. 


I.  The  position  that  a  purchaser  may  require  an  assign- 
ment of  all  outstanding  terms,  of  lohich  he  can  avail  him- 
self in  ejectment,  to  attend  the  inheritance,  naturally  calls 
our  attention  to  the  cases  in  which  a  term  may  be  used 
upon  an  ejectment.  We  have  already  seen  that,  in  some 
cases,  the  possession  of  the  cestui  que  trust  may  operate 

(*463) 


526 


OF  ASSIGNMENTS  OF  TERMS. 


as  a  bar  to  his  trustee(a).  So  where  whilst  fines  could 
be  levied  a  purchaser  was  not,  at  the  time  of  his  contract, 
aware  of  the  term,  and  its  existence  would  have  endan- 
gered or  affected  his  title,  a  fine  levied,  with  five  years 
(*)non-claim,  would  have  operated  as  a  bar  to  the  trustee 
of  the  term(6)  ;  although  where  the  term  had  been  assign- 
ed in  trust  for  the  purchaser,  a  fine  levied  would  not  affect 
it,  because  such  a  construction  would  be  manifestly  con- 
trary to  the  intention  of  the  parties(c).  But  as  the  law 
on  these  points  was  not  well  settled,  it  was  laid  down  in 
the  last  edition  of  this  work,  as  a  general  rule,  that  nearly 
all  terms  for  years,  however  ancient,  and  notwithstanding 
any  adverse  possession  or  fines,  might  be  required  by  a 
purchaser  to  be  assigned  to  attend  the  inheritance ;  and 
where  a  term  had  once  been  assigned  to  attend  the  in- 
heritance, although  at  a  period  very  remote,  and  it  had 
been  since  treated  as  a  subsisting  term  by  declarations  in 
the  subsequent  deeds,  that  the  person  in  whom  it  was 
vested  should  stand  possessed  of  it  in  trust  to  attend  the 
inheritance,  a  purchaser  could  not  be  advised  to  permit 
the  term  to  continue  outstanding,  because  it  was  clear 
that  it  might  be  used  against  him  upon  an  ejectment. 
Nor  was  it  any  answer  to  a  purchaser's  claim,  that  the 
term  has  already  been  recently  assigned  to  attend  the 
inheritance.  And  the  same  rule  should  still  be  acted  upon 
although  fines  are  abolished,  and  the  time  of  limitation  i& 
shortened  by  the  late  acts. 

Where  terms  for  years  are  raised  by  settlements,  it  is 
usual  to  introduce  a  proviso,  that  they  shall  cease  when 
the  trusts  are  at  an  end.  In  well-drawn  deeds,  this  pro- 
viso always  expresses  three  events  :   1st,  the  trusts  never 

(a)   Supra,  p.  394. 

(6)   Iseham  v.  Morrice,  Cro.  Car.  109,  5th  resol. ;  2  Ventr.  329. 
(c)  Freeman  v.  Barnes,  1  Ventr.   80 ;   1   Lev.   270.     See  Smith  i\ 
Peirce,  Carth.  100  ;  Basket  v.  Peirce,  4  Vern.  226. 

(*464) 


OF  ASSIGNMENTS  OF  TERMS. 


527 


arising ;  2dly,  their  becoming  unnecessary  or  incapable 
of  taking  effect ;  or,  Sdly,  the  performance  of  them.  But 
it  frequently  happens,  in  ill-penned  instruments,  that  these 
events  are  not  accurately  expressed,  or  not  all  provided 
for ;  and  in  those  cases  it  must  be  seen  whether,  in  the 
(*)events  which  have  happened,  the  term  has  ceased,  for  if 
it  has  not,  the  purchaser  must  require  an  assignment  of 
the  term.  To  illustrate  this  doctrine,  let  us  suppose  a 
term  for  years  to  be  created  for  raising  a  sum  of  money 
for  the  first  son  of  A,  who  shall  attain  twenty-one,  and 
that  it  is  declared  by  the  deed,  that  when  the  trusts  are 
performed,  the  term  shall  cease.  Now,  in  this  case,  if  A, 
should  not  have  a  son  who  attains  twenty-one,  the  trusts 
would  not  have  arisen,  and  consequently  could  not  be 
performed  ;  and  it  seems  that  the  term  will  not  cease ; 
the  event  which  happened  not  being  provided  for  in  the 
declaration  for  cesser  of  the  term. 

In  a  late  case(<:/),  which  has  already  been  referred  to,  it 
appeared,  that  under  a  power  Mr.  Walsh  Porter  had,  by 
deed,  charged  the  estate  in  question  with  the  payment  of 
5,000/.  to  the  children  of  his  then  intended  marriage,  at 
such  time  or  times,  and  in  such  proportions,  and  in  such 
manner  as  thereinafter  mentioned.  And,  by  the  same  deed, 
in  further  exercise  of  his  power,  he  appointed  the  estate 
to  trustees  for  five  hundred  years,  upon  the  usual  trusts 
to  raise  the  5,000/.  payable  to  sons  at  twenty-one,  and 
daughters  at  twenty-one,  or  marriage,  with  the  usual  pro- 
vision for  raising  maintenance  in  the  mean  time.  And  it 
was  provided,  that  if  no  child  should  become  entitled  to 
the  portions,  or  if  the  person  or  persons  to  whom  the  next 
estate  of  inheritance  of  and  in  the  said  manor,  &.c.  in  re- 
version or  remainder,  expectant  on  the  determination  of  the 
said  term  of  five  hundred  years,  shall,  for  the  time  being, 
belong,  do,  and  shall  well  and  truly  pay,  or  cause  to  be 

{d)  Haysr.  Bailey,  Rolls,  10th  August  1813,  vide  supra,  p.  345. 

(*455) 


^28  OF  ASSIGNMENTS  OF  TERMS. 

paid,  unto  the  said  Edmund  Lambert  and  Thomas  Gorman 
(the  trustees  of  the  term),  or  the  survivor  of  them,  or  the 
executors  or  administrators  of  such  survivor,  or  well  and 
sufficiently,  to  his  and  their  good  liking,  secure  to  be  paid 
(*)the  portion  or  portions  hereinbefore  provided,  or  intend- 
ed to  be  provided,  for  such  child  or  children,  or  so  much 
thereof  as  shall  be  remaining  unpaid  (all  such  maintenance 
and  interest  as  is  hereinbefore  mentioned  being  first 
raised  and  satisfied)  ;  and  in  case  all  and  every  of  the 
trusts  declared  as  aforesaid,  of  and  concerning  the  said 
term,  shall  in  all  things  be  performed  and  satisfied,  or 
shall  be  discharged,  either  by  becoming  incapable  of  being 
performed,  or  by  any  other  means,  and  the  trustees  shall 
be  paid  their  expenses,  then  the  term  should  cease.  The 
portions  were  paid  to  the  personal  representatives  of  the 
surviving  trustee,  with  all  interest  and  maintenance  money 
up  to  the  day  of  payment,  by  the  reversioner,  "  in  order," 
as  it  was  declared,  "  to  discharge  the  estates  from  the 
portions,  and  that  the  term  might  cease  by  virtue  of  the 
proviso  contained  in  the  deed  of  appointment ;"  and  a 
regular  release  was  executed  by  the  trustees  of  the  term 
upon  receipt  of  the  money.  The  estate  was  sold,  and 
the  purchase  completed.  The  purchaser  sold  again  ;  and 
it  appeared,  that  one  of  the  children  was  still  under  age ; 
and  it  va  as  insisted  that  the  payment  to  the  trustees  did 
not  discharge  the  estate  from  the  portions.  The  seller  filed 
a  bill  for  a  specific  performance.  It  was  argued,  that  the 
term  in  the  event  had  ceased  ;  but  the  Master  of  the  Rolls 
(Sir  William  Grant)  suggested,  that,  although  the  term 
might  have  ceased,  yet  the  portions  would  still  remain 
charged  on  the  estate  under  the  charge  in  the  deed.  It 
was,  however,  submitted,  that  the  charge,  and  the  term, 
and  the  trusts  of  it,  must  all  be  taken  together.  The 
portions  would  have  been  as  much  a  charge  on  the  estate 
under  the  trust  of  the  term  as  they  were  under  the  express 
charge.     If  the  term,  which  was  the  legal  and  substantial 

(*466) 


OF  ASSIGNMENTS  OF  TERMS.  roQ 

security,  was  gone  at  law,  it  was  impossible  for  equity  to 
say  that  the  charge  yet  subsisted.  The  very  intention  of 
the  parties  would  be  frustrated  by  such  a  decision.  The 
(*)portions  were  to  be  paid,  according  to  the  charge,  to  the 
children  in  the  manner  after  mentioned  ;  and  one  mode 
afterwards  mentioned  was  a  j)ayment  to  the  children 
through  the  medium  of  the  trustees.  The  proviso  was 
inserted  to  meet  the  veiv  case  which  happened.  The 
trustees  were  persons  i  whom  the  party  making  the 
charge  reposed  confidence  and  he,  the  creator  of  the  trust, 
had  expressly  provided,  th  t  if  the  reversioner  should  be 
desirous  to  discharge  the  state  before  ihe  children  ivere 
capable  of  receiving  the  p^  riions  (for,  if  t  hey  were  of  age, 
the  portions  would,  of  coi  se,  be  payable  to  themselves), 
he  might  pay  the  money  >  the  trustees  f^r  them,  or  even 
secure  it  to  the  good  likiiL  ;  of  the  trustees.  Equity  had 
no  power  to  say  that  this  vas  not  n  discreet  act,  and  that 
the  portions,  although  pn'^  to  the  trustees  precisely  as 
directed  by  the  deed,  she  ,d,  for  the  greater  security  of 
the  infants,  still  remain  chaiged  on  the  estates.  The  term 
had  unquestionably  ceasec  at  law ;  and  the  portions 
which  it  was  raised  to  seci  e,  had,  of  course,  ceased  with 
it.  In  support  of  the  objt  tion,  it  was  argued,  that  the 
portions  were  not  payable  bv  the  charge  till  the  children 
attained  twenty-one,  and  tl  at  they  could  not  before  that 
period  be  paid  to  the  trustees,  so  as  to  discharge  the 
estate  from  them.  The  Master  of  the  Rolls  said,  that  he 
was  inclined  to  be  of  opinic  n,  that  the  charge  would  run 
with  the  term  which  would  r  ^'-ilate  the  mode  of  payment ; 
but  he  doubted  whether  the  term  would  cease,  for  it  was 
required,  that  "  all  such  maintenance  and  interest  should 
be  first  raised  and  satisfied."  Now  maintenance  was  to 
be  raised  till  the  children  attained  twenty-one.  Then  how 
can  it  be  said  that  that  is  done  until  the  child  attained 
twenty-one  ?  That  circumstance  must  concur ;  all  the 
trusts  must  be  performed  ;  it  is  in  the  conjunctive.     His 

VOL.    I.  67  (*457) 


COQ  OF  ASSIGNMENTS  OV  TERMS. 

Honor  doubted  therefore  whether  the  charge  would 
cease.  Under  these  circumstances,  he  should  think  that 
(*)the  purchaser  would  not  be  forced  to  take  the  title  ; 
and  therefore  he  overruled  the  exception  to  the  Master's 
report  against  the  title. 

This  objection  was  not  considered  in  the  argument.  It 
might,  had  the  point  been  made,  have  been  insisted,  that 
the  direction  in  the  deed,  that  "  all  such  maintenance  and 
interest  being  first  raised  and  satisfied,"  must  be  confined 
to  maintenance  and  interest  up  to  the  time  of  payment  of 
the  principal.  The  interest  was  the  fruit  of  the  principal ; 
and  when  the  principal  was  paid,  it  would  yield  interest, 
and  that  would,  of  course,  be  the  fund  for  maintenance. 
The  ground  taken  against  the  title  makes  the  reversioner 
still  liable  to  pay  interest  under  the  charge  in  the  deed, 
although  he  has  paid  off  the  principal,  which  will  jjroduce 
interest.  Could  he  file  a  bill  against  the  trustees  to  pay 
him  the  interest  of  the  5,000/.  which  he  paid  to  them  ? 
Could  the  trustees  file  a  bill  against  the  owner  of  the 
estate  for  payment  of  ths  interest,  although  they  had  the 
5,000/.  in  the  funds  ?  And,  if  not,  does  it  not  follow^  that 
the  interest  was  no  longer  a  charge  on  the  estate  ?  The 
construction,  which  depends  on  the  general  expression  in 
the  deed,  wholly  defeats  the  intention  of  the  parties,  that 
the  reversioner  might,  at  any  time,  relieve  the  estate  from 
the  charge  altogether,  upon  payment  of  the  portions.  The 
power  supposed  to  be  reserved  to  the  owner  is,  to  pay  ofi" 
the  principal,  and  yet  leave  the  estate  subject  to  the  in- 
terest. The  decision,  in  this  case,  proves,  that  the  charge 
of  the  interest  is  as  serious  an  objection  to  the  owner's 
title  as  the  charge  of  the  principal.  If,  therefore,  the 
payment  of  the  principal  has  any  operation,  it  is  to  make 
the  owner  pay  ten  per  cent,  interest  instead  of  five.  But, 
it  is  admitted,  that  the  portions  might  be  paid  to  the 
trustees  before  the  children  attained  twenty-one.  Now, 
as  the   maintenance  and  interest  were   to  be  first  raised 

(*458) 


OF  ASSIGNMENTS  OF  TERMS.  ro  j 

and  paid,  it  must  necessarily  be  intended,  that  the  mainte- 
nance (*)vvas  such  as  had  already  accrued  ;  for,  how  could 
the  trustees  raise  by  anticipation  what  might  never  be- 
come due  ?  The  proviso  for  cesser  embraced,  1st,  the  event 
of  there  being  no  child  who  should  become  entitled  to  the 
portion  ;  2d,  the  payment  of  the  portions  to  the  trustees  ; 
3d,  the  performance  of  the  trusts.  There  are  some  gen- 
eral words  in  the  proviso  which  are  unskilfully  intro- 
duced ;  but  this  was  the  intention,  and  the  words  are  suffi- 
cient to  effectuate  it."  The  word  and,  introducing  the 
third  event,  must,  it  is  submitted,  be  read  or;  for  the 
second  and  third  events  could  not  happen  together.  The 
case  was  afterwards  heard  upon  appeal  before  the  Lord 
Chancellor,  but  it  had  become  unnecessary  to  decide  the 
above  point,  and  he  gave  no  opinion  upon  it. 

Where  a  portion  is  secured  by  a  term  of  years,  and  the 
term  is  directed  to  cease  upon  payment  of  the  money,  and 
the  estate  is  sold  before  the  portion  is  paid,  it  sometimes 
happens  that  the  jiurcrhaser  is  desirous  to  keep  the  term 
on  foot,  and  the  following  plan  has  been  adopted  for  tliat 
purpose. — A  fictitious  mortgage  is  first  made  of  the  term 
for  raising  the  portion,  to  a  friend  of  the  purchaser's,  in 
which  the  purchase  is  not  noticed;  then  the  estate  is 
conveyed  to  the  purchaser  in  the  usual  way,  subject  to  the 
mortgage ;  and  then,  by  a  subsequent  deed,  the  supposed 
mortgngee  declares  that  he  has  been  paid  off,  and  that 
he  will  stand  possessed  of  the  term  in  trust  for  the  pur- 
chaser, and  to  attend  the  inheritance.  Now,  this  plan, 
although  certainly  ingenious,  is,  I  fear,  inefiVctual.  It  is 
impossible  to  read  the  deeds  bearing  date,  as  they  neces- 
sarily must  do,  within  a  day  or  two  of  each  other,  without 
seeing  that  the  whole  proceeding  is  fictitious  ;  and  if  the 
term  should  be  set  up  in  ejectment,  it  would  be  quite 
open  to  the  adverse  party  to  insist  that  the  deeds  were 
nugatory.     And  when   the  fact  is  once  establislied,  that 

(*459) 


CQ2  OF  ASSIGNMENTS  OF  TEKMS. 

(*)the  portion  was  paid  off  without  a  bona  fide  mortgage, 
it  should  seem  that  the  terra  must  cease,  by  force  of  the 
proviso  in  the  deed  creating  it,  and  that  no  artifice  of  the 
parties  can  keep  it  alive. 


JI.  We  may  now  consider  shortly  the  leading  rules  on 
the  doctrine  of  merger  of  terms  of  years,  without  a 
knowledge  of  which  the  practical  conveyancer  must  fre- 
quently be  at  a  loss  to  know  of  what  terms  to  require  an 
assignment. 

Where  a  term  of  years  and  the  inheritance  meet  in  one 
person  in  the  same  right,  the  term  is  extinct. 

So  a  man  cannot.  Sir  Edward  Coke  says,  have  a  terra 
for  years  in  his  own  right,  and  a  freehold  in  auter  droit, 
to  consist  together(e)  ;  and  he  illustrates  this  rule  by 
stating,  that  where  a  man,  lessee  for  years,  takes  a  feme 
lessor  to  wife,  the  term  is  extinct.  But  this  position 
appears  to  be  contradicted  by  the  case  of  Lichden  v. 
Winsmore(y),  in  which  it  was  held,  that  if  there  be 
lessee  for  years,  reversion  for  life  to  A.,  a  married  woman, 
and  the  lessee  grant  his  estate  to  the  husband,  and  then 
the  wife  dies,  the  term  is  not  extinct,  because  the  husband 
has  the  estates  in  several  rights,  for  the  freehold  was  in 
the  w  ife,  and  the  husband  was  merely  seised  in  her  right ; 
or,  to  speak  more  correctly,  the  freehold  was  in  the  hus- 
band and  wife,  although  in  her  right(^). 

And  it  is  clear,  that  if  in  a  case  like  this,  the  coalition 
be  not  occasioned  by  the  act  of  the  termor,  the  term  will 
not  merge.  Thus,  the  descent  of  the  fee  upon  the  wife  of 
a  termor  for  years  after  the  intermarriage  will  not  drown 
(*)the  term,  because  the  estates  do  not  coalesce  by  the  act 

(e)  1  Inst.  338  b.     See  9  East,  372. 

(/)  2  Roll.  Rep.  472 ;  1  Ro.  Abr.  934,  pi.  10  ;  Ben.  141  ;  and  see 
Thorn  r.  Newman,  3  Swanst.  603. 

(g)  See  Polyblank  r.  Hawkins,  Dougl.  329. 
(*460)  (*461) 


OF  ASSIGNMENTS  OF  TERMS. 


633 


of  the  termor  for  years(/t),  and  the  term  he  holds  in  his 
own  right,  and  the  freehold  in  right  of  his  wife.  This 
was  decided  in  the  reign  of  James  1.  by  Fleming,  C.  J. 
and  Fenner  and  Croke,  Justices,  against  the  opinion  of 
Williams,  Justice,  who,  even  after  judgment  was  given, 
said  to  the  counsel  at  the  bar  that,  as  clear  as  it  was  that 
they  were  at  the  bar,  so  clear  it  was  that  the  term  was 
extinct ;  and  in  other  respects  expressed  himself  very 
violently,  so  that  Sir  Edward  Coke's  doctrine  was  not 
overruled  without  opposition. 

Where,  however,  a  husband  termor  for  years,  seised  of 
the  freehold  in  right  of  his  wife,  has  issue  by  the  wife,  so 
that  he  is  entitled,  in  his  own  right,  as  tenant  by  the 
curtesy,  there  seems  reason  to  contend  that  the  term  will 
merge(i). 

A  term  vested  in  a  person  as  executor  may  belong  to 
him  beneficially  ;  and  it  therefore  seems,  that  if  he  pur- 
chase the  reversion,  the  term  will  be  extinct ;  although  it 
is  usual  in  practice  to  require  an  assignment  of  such  a 
term  on  a  future  purchase  of  the  inheritance ;  and  this 
practice  is  sanctioned  by  an  obiter  dictum  of  Lord  C.  J. 
Holt's  in  Cage  y.  Acton(/c),  where  he  admitted  (as  a  point 
perfectly  clear)  that  if  a  man  hath  a  term  as  executor,  and 
purchases  the  reversion,  this  is  no  extinguishment.  But 
in  Brooke's  Abridgment,  it  is  in  three  several  places(/) 
stated  to  have  been  held  by  the  Judges  Hales  and  Whor- 
wood,  in  4  Edw.  6,  that  if  a  man  has  a  lease  for  years 
as  executor,  and  afterwards  purchases  the  land  in  fee,  the 
(*)lease  is  extinct ;  and  this  position  is  cited  and  not  de- 

{h)  Lady  Piatt  r.  Sleap,  Cro.  Jac.  276;  1  Bulst.  ]18;  Jenk.  2d 
Cent.  pi.  38. 

(t)  See  1  Bulstr.  118. 

{k)  1  Salk.  326  ;  Com.  69  ;  and  see  Webb  v.  Russell,  3  Term  Rep. 
393. 

(i)  Bro.  Abr.  Extinguishment,  64,  Leases,  63,  Surrender,  62. 

(*462) 


534 


OF  ASSIGNMENTS  OF  TERMS. 


nied  in  several  CRses(m),  and  is  adopted  by  Rolle  in  his 
Abridgment(w).  So  in  a  case  in  Leonard(o),  Dyer  ex- 
plicitly laid  down  the  same  doctrine  ;  and  it  has  been 
treated  as  clear  law  in  two  cases,  one  of  which  is  reported 
by  Hetly(/?),  and  the  other  by  Freeman(^).  And  in 
one  case  one  of  the  Judges  thought,  that  even  the  descent 
of  the  fee  on  the  executor  would  merge  the  term(r), 
although  Lord  Chief  Baron  Gilbert  justly  questions  this 
position(5).  The  rule,  that  a  purchase  of  the  fee  by  the 
executor  shall  merge  the  term,  appears  to  be  founded 
in  reason  as  well  as  upon  authority  ;  for,  as  far  as  his 
own  interest  is  concerned,  there  cannot  be  any  reason 
why  the  term  should  not  merge.  It  is  admitted,  how- 
ever, on  all  hands,  that  the  term  shall  not  be  extinct  as  to 
creditors,  and  this  I  am  induced  to  believe,  from  Lord 
Raymond's  report  of  Cage  v.  Acton,  is  all  that  Lord 
Chief  Justice  Holt  meant(/),  although  his  dictum  is  so 
generally  stated  in  Comyns's  and  Salkeld's  reports  of 
this  case.  At  any  rate,  it  was  an  obiter  dictum,  and  can- 
not affect  a  doctrine  apparently  so  well  established  ;  and 
it  is  therefore  submitted  to  the  reader,  that  in  a  case  of 
this  nature  the  term  must  merge  in  the  inheritance,  except 
as  to  creditors. 

But  a  man  may  have  a  freehold  in  his  own  right,  and 
a  term  in  auter  droit(u). 

Therefore,  if  a  man  seised  of  the  freehold  intermarry 
with  a  woman  termor  for  years,  the  term  is  not  extinct, 
but  the  husband  is  possessed  of  the  term  in  right  of  his 
(*)wife,  during  the  coverture,  because  he   has  not  done 

(m)  3  Leo.  Ill  ;   2  RoUe's  Rep.  472. 

(n)   1  Ro.  Abr.  934,  pi.  9.  (o)  4  Leo.  37,  pi.  102. 

{p)  Het.  36.  ((/)   1  Freem.  289,  pi.  338. 

(r)  See  3  Leo.  112.  (s)  See  Bac.  Abr.  Leases,  (R.) 

{t)   1  Lord  Raytn.  520.  («)   1  Inst.  338  b. 

(*463) 


OF  ASSIGNMENTS  OF  TERMS. 


535 


any  act  to  destroy  the  term,  and  it  is  cast  upon  him  by  the 
act  of  law(a:). 

So  if  the  lessee  grant  the  term  to  the  wife  of  the  lessor, 
it  will  not  merge (y). 

But  if  a  man  possessed  of  a  term  in,  right  of  his  wife, 
purchase  the  freehold,  there  seems  ground  to  contend, 
that  the  term  will  merge,  inasmuch  as  the  estates  coalesce 
by  his  own  act,  and  not  as  in  the  case  of  marriage,  by  the 
act  of  law ;  and  accordingly  in  one  case(2:).  Dyer  held 
the  wife's  term  to  be  extinct  by  the  husband  purchasing 
the  fee  ;  and  Manwood,  C.  B.  agreed  with  him  ;  and  the 
same  doctrine  appears  to  have  been  held  in  a  case  re- 
ported by  Moore(a).  Lord  C.  J.  Hobart,  however,  seems 
to  have  been  of  opinion,  that  a  purchase  by  the  husband 
of  the  fee  should  not  extinguish  the  term(6),  and  in  this 
opinion  Lord  C.  J.  Holt  appears  to  have  coincided(c). 

Upon  the  foregoing  principle,  if  the  lessee  make  the 
freeholder  his  executor,  the  term  will  not  merge(^/). 

It  was  formerly  holden,  that  a  term  for  years  could  not 
merge  in  a  term  for  years  ;  but  in  Hughes  v.  Robotham(e), 
it  was  determined,  that  if  there  be  two  termors,  he  who 
has  the  less  estate  may  surrender  to  the  other,  and  the 
term  will  merge  in  the  greater :  2dly,  that  although  the 
reversion  be  for  a  less  number  of  years  than  the  term  in 
possession,  yet  the  term  in  possession  shall  drown  in  that 
in  reversion. 

(x)  Bracebiidge  v.  Cook,  Plo.  Com.n.  417;  and  see  4  Leo.  38; 
Godb.  2  ;   Het.  36. 

{y)   Bracebridge  v.  Cook,  Plo.  Comtn.  417. 

(z)   Godb.  2  ;  4  Leo.  3S. 

(«)   Mo.  54,  pi.  167. 

{b)  Young  V.  Radford,  Hob.  3. 

(c)   See  1  Salk.  326. 

(rf)  1  Inst.  333  b  ;  1  Freem.  289,  pi.  338.  See  Attorney-general  v. 
Sands,  3  Cha.  Rep.  19. 

(e)  Hughes  v.  Robothani,  Cro.  Eliz.  302.  See  Bac.  Abr.  Leases, 
(S.)  s.  2  ;  Stephens  r.  Brydges,  V.  C.  1821,  MS.  accordingly. 


536 


OF  ASSIGNMENTS  OF  TERMS. 


(*)lt  remains  to  observe,  that  before  the  statute  of 
uses(/),  if  a  termor  for  years  was  enfeoffed  to  uses,  equity 
would  not  compel  him  to  execute  the  estate  so  as  to  deprive 
himself  of  his  term.  The  statute  of  Henry,  by  transfer- 
ring the  use  into  a  possession,  would  have  destroyed  the 
estates  of  termors  who  were  enfeoffed  to  uses  ;  but  to  pre- 
vent this  injustice,  an  express  saving  was  introduced  into 
the  act  of  the  rights  of  all  persons  seised  to  uses.  There- 
fore, if  a  fine  or  feoffment  be  levied  or  made  to  a  lessee 
for  years  to  the  use  of  others,  the  term  will  not  be  extinct, 
although  if  the  statute  had  not  been  made,  the  term  would 
have  been  extinguished  at  common  law(^).  So,  where 
a  termor  for  years  was  made  a  tenant  to  the  prcecipe,  it 
was  held  that  although  the  freehold  vested  in  him  drowned 
the  term  until  the  recovery  was  suffered,  yet,  when  the 
recovery  was  perfected,  the  term  should  revive(A).  And 
it  seems  that  the  same  rule  must  prevail  where  the  con- 
veyance is  by  lease  and  release,  although  it  has  been 
strenuously  argued,  that  as  the  lease  for  a  year  is  a  sur- 
render in  law  of  the  prior  term,  the  subsequent  release  to 
uses  shall  not  bring  the  case  within  the  saving  of  the 
statute  of  uses.  There  appears,  however,  to  be  no  weight 
in  this  argument ;  a  lease  and  release  being  a  common 
conveyance,  and  deemed  one  assurance ;  and  from  one 
report  of  the  case,  in  which  the  question  arose,  it  seems 
that  the  Judges(i)  thought  that  the  term  was  not  extin- 
guished by  the  lease  for  a  year(A:). 

It  may  here  be  remarked,  that  a  deed  purporting  to  be 
an  assignment  of  an  old  term  may,  if  that  term  has  by 

(/)  27  Hen.  VIII.  c.  10,  s.  3. 

(g)  Chesney's  case,  Mo.  196,  pi.  345  ;  7  Rep.  19  b,  20  a,  cited. 

{h)  Ferrors  v.  Fermor,  2  Roll.  Rep.  245  ;  Cro.  Jac.  643  ;  Terrie's 
case,  1  Ventr.  280,  cited. 

(t)  See  3  Keb.  310. 

(A;)  Fountain  v.  Cook,  1  Mod.  127  ;  best  reported  Bac.  Abr.  Leases, 
(R.) ;  S.  C.  by  the  name  of  How  r.  Stiles,  3  Keb.  283,  309  ;  2  Lev.  126. 

(*464) 


OF  ASSIGNMENTS  OF  TERMS.  ro^y 

(*)any  accident  ceased,  operate  as  the  creation  of  a  new 
one.  As  in  the  common  case  of  an  assignment  of  a  term 
in  which  the  freeholder  in  reversion  joins  in  granting, 
bargaining,  selling,  and  assigning  the  term  ;  if  the  old 
term  has  become  void,  it  will  be  resuscitated  by  these 
words(/). 


HI.  The  expense  of  the  assignment  of  any  terms  of 
years  which  a  purchaser  can  require  to  be  assigned  to 
attend  the  inheritance,  must  be  borne  by  the  purchaser 
himself,  but  the  title  to  them  must  of  course  be  deduced 
at  the  expense  of  the  vendor  ;  and  if  a  term  has  never 
been  assigned  to  attend  the  inheritance,  the  vendor  must 
bear  the  expense,  not  only  of  deducing  the  title,  but  also 
of  the  assignment  of  the  term  to  a  trustee  of  the  pur- 
chaser's nomination  to  attend  the  inheritance. 

The  rule,  that  terms  of  years  which  have  never  been 
assigned  to  attend  the  inheritance,  must  be  assigned  to  a 
trustee  of  the  purchaser's  nomination,  at  the  vendor^s  ex- 
pense, is  not  acknowledged  by  some  gentlemen  of  emi- 
nence, who,  on  the  contrary,  insist  that  the  purchaser 
must  consider  the  term  either  as  a  protection,  or  as  an 
incumbrance.  If  he  deem  it  a  protection,  then  they  con- 
tend that  he  must  assign  it  at  his  own  expense.  If,  on 
the  contrary,  the  purchaser  treat  the  term  as  an  incum- 
brance, they  admit  that  the  vendor  must  discharge  the 
estate  from  it,  and  accordingly  offer  to  merge  the  term  at 
his  expense.  The  general  practice  of  the  Profession, 
however,  is  certainly  in  favor  of  the  purchaser's  right  to 
require  an  assignment  of  the  term  to  attend  the  inherit- 
ance at  the  vendor's  expense  ;  and  when  it  is  admitted 
that  the  vendor  may  be  compelled  to  merge  the  term  at 
his  own  expense,  it  seems  very  difficult  to  contend  that 
(*)the  purchaser  may  not  insist  upon  its  being  assigned. 

(/)  See  Demi  v.  Kenieys,  9  East,  366. 
vor.    I.  6S  (*465)  (*466) 


538 


OF  ASSIGNMENTS  OF  TERMS. 


A  refusal  to  assign  may,  undor  these  circumstances,  be 
thought  to  be  a  mere  subterfuge  to  avoid  the  expense  of 
the  assignment,  and  throw  it  upon  the  purchaser.  If  the 
purchaser  insist  upon  an  assignment  of  the  term,  it  seems 
clear  that  the  vendor  cannot  safely  merge  it,  although  the 
purchaser  refuse  to  bear  the  expense  of  the  assignment. 
The  title  appearing  on  the  abstract  is  that  on  which  the 
purchaser  is  to  act,  and  consequently  the  vendor,  after 
delivery  of  the  abstract,  ought  not  merely  of  his  own 
authority  to  do  any  act  to  alter  or  affect  the  title  ;  and  a 
trustee  of  a  term  can  scarcely  be  advised,  after  notice  of 
a  contract  for  sale  of  the  estate  (when  he  is  by  construc- 
tion of  equity  become  a  trustee  for  the  purchaser),  to 
merge  the  term  against  the  consent  of  his  cestui  que  trusty 
the  purchaser.  It  would  be  difficult,  therefore,  to  esta- 
blish any  other  rule  than  that  which,  it  is  ajjprehended, 
is  generally  adopted  by  the  Profession. 

In  some  cases,  perhaps,  assignments  of  terms  may  be 
dispensed  with. 

In  Willoughby  v.  Willoughby(m),  Lord  Hardwicke 
laid  it  down,  "  that  where  an  old  term  had  been  assigned 
upon  an  express  trust  to  attend  upon  and  protect  the  in- 
heritance, as  settled  by  such  a  deed,  or  the  uses  of  such  a 
settlement  described  or  referred  to  particularly,  as  it  some- 
times happens,  and  the  conveyancer  is  satisfied  that  those 
uses  of  the  inheritance  have  never  been  barred  till  his 
new  settlement  or  purchase  is  made,  he  may  very  safely 
rely  upon  it,  because  the  very  assignment  carries  notice 
of  the  old  uses(I).  Nay,  where  the  assignment  has 
(*)been  generally  in  trust  to  attend  the  inheritance,  and 

(m)    1  Term  Rep.  763. 

(I)  Qu.  this.  If  the  person  claiming  under  the  settlement  should 
sell  the  estate  to  two  distinct  purchasers,  who  were  equally  innocent,  it 
seems  that  the  second  purchaser,  by  procuring  an  assignment  of  the 
term,  might  exclude  the  first  purchaser  during  the  term. 

(*467) 


OF  ASSIGNMENTS  OF  TERMS.  -on 

the  parties  approve  of  the  old  trustees,  they  may  safely 
rely  upon  it,  especially  in  the  cases  of  a  purchase  or  mort- 
gage, where,  the  title-deeds  always  are  or  ought  to  be 
taken  in  :  for  if  he  has  the  creation  and  the  assignment  of 
the  term^in  his  own  hands,  no  use  can  be  made  of  it 
against  him.  This,  however,  is  never  relied  upon  in 
practice.  And  a  declaration  of  trust  of  a  term  never 
should  be  relied  upon,  unless  all  the  title-deeds  are  de- 
livered to  the  purchaser.  A  mere  declaration  of  trust 
will  not  protect  the  possession  against  a  subsequent  pur- 
chaser bona  fide,  and  without  notice,  \^  ho  procures  an 
assignment  of  the  term  ;  and  it  has  even  been  held  that 
the  custody  of  the  deeds,  accompanied  by  a  declaration 
of  trust  of  the  term,  is,  as  against  a  bare  declaration  of 
trust,  tantamount  to  an  actual  assignment  (n).  But,  as 
we  shall  presently  see,  a  case  may  perhaps  occur,  in 
which  an  assignment  of  a  term  would  be  a  protection 
against  a  declaration  of  trust  of  it,  accompanied  by  the 
deeds  ;  so  that  a  prudent  purchaser  will  scarcely  ever 
dispense  with  an  actual  assignment  of  an  outstanding 
tcrm(242). 

Mr.  Butler,  in  his  learned  and  practical  notes  to  Co. 
Litt.  lays  down  the  following  rules  respecting  the  cases  in 
which  a  purchaser  should  or  should  not  dispense  with  an 
assignment  of  outstanding  terms(o). 

"  1st.  It  may  be  laid  down  as  a  general  rule,  that 
wherever  a  term  has  been  raised  for  securing  the  payment 
of  money,  as  the  assignment  of  it  by  the  trustee  for   the 

(n)   Stanhope  v.  Earl  Verney,  Butler's  n.  (1)  s.  13,  to  Co.  Litt.  290.  b. 
(o)   See  the  13th  section  of  n.  (1)  to  1  Inst.  290  b. 

(242)  Of  two  equitable  incumbrancers,  he  who  has  the  preferable  right 
to  call  for  the  legal  estate,  is  entitled  to  preference  ;  though  he  hath  not  ac- 
tually got  it  in,  nor  got  an  assignment,  nor  even  possession  of  the  deed 
conveying  the  outstanding  legal  title  ;  and  though  his  lien  is  of  subse- 
(juentdate  to  the  other  incumbrance.  IVUUamson  v.  Govdoii's  Kxrs.  5 
Munf.  257. 


540 


OP  ASSIGNMENTS  OF  TERMS. 


person  entitled  to  receive,  to  a  trustee  for  the  person 
obliged  to  pay  the  money,  is  the  best  possible  evidence  of 
(*)the  payment  of  the  money  ;  it  may  be  reasonably  re- 
quired as  such. 

"  2dly.  In  case  a  term  for  years  has  been  assigned  to 
attend  the  inheritance,  if,  upon  a  purchase,  all  the  deeds 
(as  well,  originals  as  counterparts)  by  which  the  term  was 
created  or  assigned  are  delivered  to  the  purchaser,  and 
he  is  satisfied  that  the  trustee  in  whom  it  is  there  said  to 
be  vested  has  made  no  prior  assignment  of  it,  and  that 
the  vendor  has  not  charged  the  estate  with  any  interme- 
diate incumbrance,  it  is  difficult  to  say  what  possible  use 
can  be  made  of  the  term  against  him,  or  what  good  can 
be  answered  by  requiring  an  assignment  of  it  to  a  trustee 
of  his  ow^n,  unless  it  be  to  satisfy  the  requisitions  of  those 
to  whom  he  may  afterwards  have  occasion  to  mortgage  or 
sell  the  estate. 

"  3dly.  But  if  any  of  the  deeds  respecting  the  term 
are  not  delivered  to  the  purchaser,  or  if  he  is  not  satisfied 
of  the  trustee  not  having  previously  assigned  it,  or  of 
the  vendor  having  made  no  intermediate  incumbrance, 
it  seems  prudent  to  require  an  actual  assignment  of  it  to 
a  trustee  for  him." 

With  respect  to  the  second  of  the  above  rules,  the  at- 
tention of  the  purchaser  should  be  particularly  called  to 
the  requisite,  that  the  vendor  has  not  charged  the  estate 
with  any  intermediate  incumbrance.  A  vendor  may,  by 
fraudulent  representations,  induce  a  purchaser  to  believe 
that  the  title-deeds  are  destroyed  or  mislaid :  and  if  a 
purchaser  acting  under  this  impression  should  procure  an 
actual  assignment  of  a  term  from  the  person  in  whom 
it  was  vested,  it  seems  impossible  to  contend  that  the 
person  in  possession  of  the  deeds,  although  he  claims 
a  prior  title   to  the  inheritance(p),  has  any  equity  against 

(p)   See  1  Pow.  Mort.  4th  edit.  510  ;   Evans  r.  Bicknell,  6  Ves.  jun. 
174  ;  Martinez  r.  Cooper,  2  Russ.  198. 
(*468) 


OF  ASSIGNMENTS  OF  TERMS. 


641 


(*)the  subsequent  purchaser,  who  must  not  be  prevented 
from  making  the  best  use  he  can  of  the  term.  It  is  evi- 
dent, however,  that  the  person  having  thus  obtained  an 
assignment  of  a  term,  must  have  considerable  difficulty 
in  using  it  as  a  sword  to  attack  the  possession  of  his 
adversary(g). 

A  purchaser  may,  in  some  cases,  be  entitled  to  the  be- 
nefit of  an  outstanding  term,  although  he  has  neither  an 
assignment  of  it,  nor  the  possession  of  the  deeds  relating 
to  it.      This  doctrine  will  be  discussed  hereafter(r). 

It  may  here  be  remarked,  that  where  a  term  of  years 
does  not  necessarily  appear  on  the  face  of  the  conveyance, 
it  should  be  assigned  to  attend  the  inheritance  by  a  sepa- 
rate deed,  and  no  notice  should  be  taken  of  it  in  the  con- 
veyance of  the  fee,  for  the  legal  estate  must  prevail  at 
law(5)(243)  ;  and  it  is  a  consequence  of  this  rule,  that 
where  a  term  of  years  is  assigned  by  the  conveyance  of 
the  inheritance,  or  even  mentioned  in  it  as  a  subsisting 
term,  the  owner  cannot  safely  bring  an  ejectment  in  his 
own  name  only,  lest  his  action  should  be  defeated  by  the 
production  of  the  conveyance  to  him,  in  which  it  would  ap- 
pear that  the  legal  estate  was  vested  in  his  trustee.  And 
here  we  may  correct  the  common  error  of  excepting  the 

(q)  Sec  ex  parte  Knott,  11  Ves.  jun.  609. 

(r)   See  post.  ch.  17. 

(«)  See  Doe  v.  Wroot,  6  F>ast,  132  ;  and  the  cases  cited  in  the  note 
to  p.  138  ;  which  have  overruled  Mr.  Justice  Gundry's,  Lord  Mans- 
field's and  Mr.  Justice  Buller's  equitable  doctrine  as  to  terms  of  years. 
See  Doe  v.  Pegge,  1  T.  Rep.  768,  n.  (o),  and  several  cases  in  Burr. 
Cowp.  and  Doiigl. 


(243)  See  Jackson  V.  iSisson,  2  Johns.  Cas.  321.     Jacksoti  v.  Pierce, 

2  Johns.  Rep.  221.  Jackson  v.  Van  Shjck,  8  Johns.  Rep.  380,  2d  Edit. 

JMoore^s  Les.  v.   Pearce,  2  Hen.  &  Munf.   236.     See   also,   Fintey  v. 

Williams,  9  C ranch,  164.     Broivn's  Les.  v.   Galloxvaxj,  1  Peters'  Rep. 

299.      WUlinkh   Les.  v.  Miles,  1  Peters'   Rep.   429.      Penn's  Les.   v. 

Klyne,  4  Dall.  409.     Jackson  v.  Chase,  2  Johns.  Rep.  84.     Jackson  v. 

Dego,  3  Johns.  Rep.  422. 

(*469) 


542  ^^  ASSIGNMENTS  OF  TERMS. 

term  in  the  conveyance  of  the  inheritance,  as  an  incum- 
brance, although  it  is  assigned  to  attend  by  a  separate 
deed.  This  practice  is  very  incorrect,  for  the  term  is  a 
protection,  and  not  an  incumbrance  ;  and  the  exception 
in  the  conveyance  effectually  defeats  the  advantages  which 
(*)might  otherwise  be  derived  from  the  term  being  assign- 
ed by  a  separate  deed. 


IV.  Where  trustees  ought  to  convey  to  the  beneficial 
owner,  it  will,  upon  a  trial,  be  left  to  the  jury  to  presume 
where  such  a  presumption  may  reasonably  be  made,  that 
they  have  conveyed  accordingly,  in  order  to  prevent  a  just 
title  from  being  defeated  by  a  matter  of  form(i)(244). 

But  where  the  trustee  of  a  term  is  not  joined  in  an  eject- 
ment brought  by  his  cestui  que  trust,  and  the  jury  state 
in  a  special  verdict,  or  a  special  case,  that  the  term  still 
continues,  the  plaintiff  cannot  prevail  at  law,  but  will  be 
defeated  by  the  legal  estate  in  his  trustee(w)(245).     This 

(t)  Lade  v.  Holford,  Bull.  Ni.  Pri.  110,  as  explained  in  Doe  v.  Sy- 
bourn,  7  Term  Rep.  2  ;  and  Roe  v.  Reade,  8  Term  Rep.  1 18  ;  and  see 
Doe  V.  Staple,  2  Term  Rep.  634  ;  Tankard  v.  Wade,  Irish  Term  Rep. 
162  ;  and  Hillary  v.  Waller,  12  Yes.  jun.  239. 

(m)  Goodtitle  V.  Jones,  7  Term  Rep.  47  ;  Roe  v.  Reade,  8  Term 
Rep.  118  ;  and  see  Doe  v.  Staple,  2  Term  Rep.  684. 

(244)  See  Jackson  v.  Pierce,  2  Johns.  Rep.  226.  Jackson  v.  JMoore, 
13  Johns.  Rep.  513.  Doe  v.  Phelps,  9  Johns.  Rep.  169.  Doe  v. 
Campbell,  10  Johns.  Rep.  475. 

(245)  Cestuis  qrie  trust  may  support  ejectment  in  their  own  names,  in 
Pennsylvania ;  otherwise,  they  would  be  without  remedy  in  the  case  of 
an  obstinate  trustee,  there  being  no  court  of  equity  in  that  state  :  Ken- 
nedy V.  Fury,  1  Dall.  72.  An  equitable  title  is  sufficient  to  support  the 
action.  Chancery  powers  having  devolved  on  the  courts  of  law,  are 
exercised  through  the  instrumentality  of  jurors.  Smith  v.  Patton,  1 
Serg.  &  Rawle,  80.  So,  ejectment  will  lie  against  the  vendor  of  real 
estate,  on  articles  of  agreement,  after  the  tender  of  the  purchase  money. 
Haivn  V.  JVorris,  4  Binn.  77.  J\linsker  and  Bale  v.  JVIorrison,  2 
Yeates,  344.     So,  the  vendor  may  maintain  ejectment  against  the  ven- 

(*470) 


OF  ASSIGNMENTS  OF  TERMS. 


543 


must  inevitably  happen  where  a  term  of  years  has  been 
assigned  to  attend  the  inheritance  upon  a  purchase  of  the 
fee,  and  the  purchaser  brings  an  ejectment  in  his  own 
name  only.  It  were  clearly  too  much  to  presume  a  sur- 
render of  a  term  which  the  owner  has  so  anxiously  kept 
distinct  from  the  inheritance(a:). 

This  was  so  stated  in  the  last  edition  of  this  work  ; 
but  the  point  has  since  undergone  much  discussion,  and 
the  leading  heads  of  the  argument,  and  the  present  state 
of  the  law  on  this  head,  must  now  be  retraced(I). 

It  has  long  been  the  policy  of  our  Legislature  to  encou- 
rage the  free  alienation  of  real  property,  and  secure  the 
titles  of  6owaj^(/e  purchasers.  Our  statute  book  abounds 
with  laws  having  this  tendency.  The  same  spirit  per- 
vades (*)the  common  law.  We  are  told  that  the  maxims 
of  the  common  law,  which  refer  to  descents,  discontinu- 
ances, non-claims  and  collateral  warranties,  are  only  the 
wise  arts  and  intentions  of  the  law  to  protect  the  possession 
and  strengthen  the  rights  of  purchasers.  A  purchaser  is 
a  favorite  of  a  court  of  equity.  It  is  the  settled  law  of 
that  court,  that  if  a  man  buy  an  estate  fairly  he  may  get 
in  a  term  of  years,  or  other  incumbrance,  although  it  is 
satisfied,  and  thereby  defend  his  title  at  law  against  any 
mesne  incumbrance  of  which  he  had  not  notice.  It  were 
idle  to  discuss  the  policy  of  our  law.  In  a  commercial 
country  like  ours,  where  one  great  stimulus  to  enterprise 
in  commerce  is  the  hope  to  possess  territorial  ownership, 
every  one  is  interested  in  the  free  interchange  of  property, 
and  the  safety  of  purchasers.     The  danger  of  latent  in- 

{x)   See  Doe  v.  Scott,  1 1  East,  478. 

(I)   This  was  the  statement  in  the  6th  edition. 

dee  in  possession,  if  the  purchase  money  be  not  paid.  JVliichell  v.  De 
Roche,  1  Yeates,  12.  See  further,  JVeii'^a//  v.  Wheeler,  7  Mass.  Rep. 
189. 

(*471) 


644 


OF  ASSIGNMENTS  OF  TERMS. 


cumbrances  renders  it  necessary  that  every  possible  guard 
should  be  thrown  around  purchasers.     The  policy  of  the 
law  in  this  respect  led  to  the  received  doctrine  as  to  terms 
of  years  attendant  on  the  inheritance.     Abstractedly  con- 
sidered, nothing  can  be  more  absurd  than  that  a  purchaser 
of  the  fee  should  procure  a  term  of  years,  created  a  cen- 
tury ago,  to  be  assigned   to  a  trustee  for  him.     But  with 
reference  to  the  protection  to  be  derived  from  such  a  term 
of  years,  it  is  of  the  deepest  importance   to  a  purchaser 
that  he  should   keep  it  on   foot.     At  law,  every  term  of 
years  in  a  trustee  is  a  term  in  gross.     This,  which  was 
distinctly  laid  down  by  Lord  Hardwicke(?/),  should  never 
be  lost  sight  of.     The  moment  that  a  court  of  law  acts 
upon  the   term  as  a  part  of  the  inheritance,  it  strikes  at 
the  root  of  the  settled  doctrines  of  centuries,  shakes  the 
landmarks  of  the  law  of  real  property,  and   renders  inse- 
cure the  title  of  every  purchaser  in   the  kingdom.     Our 
law  permits  the  creation  of  terms  of  years  for  any  period 
of  time.     Where  a  term,  whether  for  one  hundred  or  ten 
(*)thousand  years,  is  created  byway  of  use,  it  invests  the 
person  to  whom  it  is  granted  with  a  legal   right  to   the 
estate  during  the  period  specified.     It  is  not  necessary  by 
our  law,  that  possession  should  accompany  the  legal  estate 
in  order  that  the   title  of  the  legal  owner  should  continue 
unbarred.     Possession  by  my  tenant,  or  by  a  person  with 
my  permission,  or  acknowledging  my  title,  is  in  law  pos- 
session by  me,  and  during  such  tenancy  or  holding  my 
title  remains  unimpeached  ;  therefore,  although   the  legal 
owners  of  the  fee  of  an  estate  have  enjoyed  it  for  the  last 
one  hundred  years,  yet  that  will  not  affect  the  existence 
of  a  term  of  years  in  the  trustee  to  attend  the  inheritance, 
because  the  possession  of  the  legal  owner  of  the  fee  is 
the  possession  of  the  termor ;  their  titles  are  consistent, 

(y)  1  Term  Rep.  765. 
(*472) 


OF  ASSIGNMENTS  OF  TERMS.  e  » - 

nnd  support  each  other(I).  The  owner  of  the  fee  is  as  a 
tenant  at  will  to  his  own  trustee.  It  frequently  happens 
that  the  owner  of  the  fee  is  indebted  to  the  term  of  years 
for  his  peaceable  possession  ;  such  a  possession,  therefore, 
operates  as  a  continual  acknowledgment*  of  the  legal 
title  of  the  termor,  and  proves  its  efficacy.  The  term  is 
anxiously  assigned  to  attend  the  inheritance  ;  it  does  ac- 
cordingly attend  the  inheritance ;  and  the  jierformance 
of  the  very  service  for  which  it  was  created  never  can  be 
a  ground  for  defeating  its  legal  operation.  Upon  prin- 
ciple, therefore,  a  term  of  years  assigned  to  attend  the 
inheritance  ought  not  to  be  presumed  to  be  surrendered 
unless  there  has  been  an  enjoyment  inconsistent  tviih  the 
existence  of  the  term,  or  some  act  done  in  order  to  disavoiv 
the  tenure  under  the  termor,  and  to  bar  it  as  a  continuing: 
interest.  This  has  always  been  the  received  opinion  of 
the  Profession,  and  particularly  of  tliat  class  of  the  Pro- 
fession to  w^hom  titles  are  more  particularly  referred.  It 
matters  very  little  what  is  the  opinion  of  any  individual 
(*)conveyancer ;  but  the  opinion  of  the  conveyancers,  as 
a  class,  is  of  the  deepest  importance  to  every  individual  of 
property  in  tiie  state.  Their  settled  rule  of  practice  has 
accordingly,  in  several  instances,  been  adopted  as  tlic  law 
of  the  land,  not  out  of  resp(;ct  for  them,  but  out  of  ten- 
derness to  the  numerous  jjurchascrs  wiio  have  bought 
estates  under  their  advice. 

As  judgments,  and  other  incumbrances,  are  infinite, 
and  it  is  impossible  to  rely  even  upon  searches  for  them, 
the  doctrine,  that  a  term  of  years  attendant  on  the  inhe- 
ritance should  protect  a  purchaser  against  incumbrances 
of  which  he  had  not  notice,  was  long  since  established. 
This  rule  of  property  was  shaken  in  the  time  of  Lord 
Mansfield,  when  the  courts  of  law  broke  down  the  boun- 
dary between  them  and  courts  of  equity  ;   but  the  barrier 


(T)   See  now  the  3  &  1  W.  4,  c.  27. 

VOL.  f.  69  ("473) 


ehQ  OF  ASSIGNMENTS  OF  TERMS. 

has  since  been  restored,  and   equitable  doctrines  are  no 
longer  acted  upon  in  courts  of  law. 

Now,  with  a  view  to  discuss  at  large  the  doctrine  of 
presuming  a  surrender  of  a  term   assigned  to  attend  the 
inheritance,  let  us  suppose  a  term  of  years  to  be  created 
in  the  year  1700,  by  way  of  mortgage.     B.  buys  the  fee 
in  1760,  and  pays  off  the  mortgage,  and  the  term  is  as- 
signed to  a  trustee  for  B.,  his  heirs  and  assigns,  and  to 
attend  the  inheritance.     B.  lives  till  1819,  without  dis- 
turbing the  term,  or  in  any  manner  recognizing  its  exist- 
ence.    Can  it  be  contended  that  a  surrender  of  the  term 
should  be  presumed  ?     Was  not  B.''s  possession  consistent 
with  the  existence  of  the  term  immediately  after  the  as- 
signment in  1760  ?  If  so,  when  did  it  become  adverse  to 
it  ?  What  necessity  was  there  for  any  act  recognizing  the 
existence  of  the  term  whilst  jB.'5  continued  possession  was 
consistent  with  the  term,  and  was  supported  by  the  trust 
upon  which  it  was  assigned  ?     If  the  term  ought  to  have 
been  recognized  from  time  to  time,  how  often  should  this 
act  be  repeated  ;  once  a  w^eek,  or  once  a  month  ?  Is  there 
(*)any  ground  upon  which,  in  1819,  a   surrender  can  be 
presumed  on  the  strength  of  5. '5  possession,  which  would 
not  be  equally  operative  the  first  week,  nay,  the  first  day 
after  the  purchase  in  1760?     In  the  absence   of  evidence 
of  a  surrender,  it  is  impossible,  on  any  sound  principle, 
to  presume  one  ;  unless  the  precise  instant  can  be  pointed 
out  when  the  owner  of  the   inheritance  was  desirous  no 
longer  to  have  the  benefit  of  the  term.     Without  his  pre- 
sumed concurrence  a  surrender  cannot   be  presimied  ;  for 
the  trust  was  not  to  surrender  the  term,  by  which  means 
incumbrances  might  be  let  in,  but  expressly  to  keep  it  on 
foot,  in  order  to  exclude  them.    A  surrender  by  the  trustee, 
therefore,  without    the  direction  of  his  cestui  que  trust, 
would  be  a  breach  of  trust.     It  is  said  that  the  expense 
of  making  out  a  representation  to  a  termor  makes  the 

(*474) 


OF  ASSIGNMENTS  OF  TERMS.  ^^7 

term  a  burden  instead  of  a  benefit  to  the  owner  of  the 
fee.  It  is  not,  however,  denied  that  the  owner  of  the  fee 
may  keep  on  foot  a  term  attendant  on  the  inheritance, 
and  that  no  court  of  law  can  control  his  power  to  do  so. 
Where  he  has  exercised  his  power,  and  declared,  without 
any  limitation  of  time,  that  the  term  shall  be  attendant 
on  the  inheritance,  and  be  in  trust  for  him,  his  heirs  and 
assigns,  does  not  this  mean  that  the  inheritance  shall  be 
so  attended  during  all  the  years  to  come  in  the  term  ? — 
and  if  it  do,  what  power  has  a  court  of  law  out  of  a  mor- 
bid compassion  for  him,  on  account  of  the  expense  which 
it  may  occasion,  to  presume  a  surrender  of  the  term  which 
he  has  so  anxiously  kept  on  foot  ?  particularly  as  at  the 
very  moment  that  a  surrender  of  the  term  is  presumed, 
its  existence  may  be  required  to  protect  the  estate  against 
a  latent  incumbrance  ;  and  the  Court  has  no  means  what- 
ever to  ascertain  whether  there  is  any  such  incumbrance. 
The  amount  of  the  expense,  too,  must  depend  upon  the  par- 
ticular circumstances  of  each  case  :  and  yet  it  would  hard- 
ly be  desirable  that  the  rule  should  depend  on  the  quan- 
tum (*)of  expense  which  an  assignment  would  occasion. 
If,  however,  expense  is  to  be  adverted  to,  on  that  ground 
alone  surrenders  should  not  in  such  a  case  be  presumed  ; 
because  that  doctrine  would  weaken  a  purchaser's  reliance 
on  any  given  term  of  years  ;  he  would  in  almost  every 
case  search  for  Judgments.  This  could  not  be  done  with- 
out expense  ;  and  where  a  man  has  been  in  the  habit  of 
confessing  judgments,  it  very  seldom  happens  that  satis- 
faction is  entered  upon  them  when  they  are  paid  off. 
This  leads  to  great  expense,  and  difficulty  in  practice ; 
because  a  purchaser  expects  the  judgments  to  be  regularly 
discharged  ;  and  where  even  a  few  years  have  elapsed 
since  the  payment  of  the  debt,  if  the  creditor  is  living 
and  can  be  traced,  yet  he  hesitates  to  do  any  further  act 
in  relation  to  a  transaction  which  he  considered  long  since 
closed. 

(*475) 


548  ^^  ASSIGNMENTS  OF  TERMS. 

If  the  surrender  of  the  terui  cannot  be  presumed  at  B.h 
death  in  1819,  we  will  suppose  the  estate  to  descend  to 
B.h  heir  at  law.  Now  no  man  ever  heard  of  an  heir  at 
law  executing  a  deed  for  the  sole  purpose  of  recognizing 
terms  of  jears  attendant  on  the  inheritance,  or  taking 
assignments  of  them  tone\'\'  trustees  to  attend,  wliere  they 
had  already  been  assigned  to  trustees  of  his  ancestor's 
nomination  for  that  purpose.  His  possession,  however, 
comes  in  the  place  of  his  ancestor's  ;  and  why  should  he 
be  deprived  of  the  guard  which  his  ancestor  created  for 
his  benefit  ?  If  his  ancestor's  possession  was  the  posses- 
sion of  the  trustee,  it  will  not  be  denied  that  his  posses- 
sion stands  in  the  same  relation.  The  trust  is  to  attend 
the  inheritance,  and  for  B.,  his  heirs  and  assigns  ;  there- 
fore, under  the  express  w^ords  of  the  trust,  the  heir  is  en- 
titled to  the  benefit  of  it,  and  his  possession  is  the  pos- 
session of  the  trustee. 

Suppose  further,  that  B.^s  heir,  in  1820,  makes  a  mar- 
riage settlement  without  noticing  the  term  of  3'ears,  could 
(*)the  term  on  that  account  be  presumed  to  be  surrender- 
ed ?  It  is  not  tlie  practice  upon  a  marriage  settlement  to  re- 
assign attendant  terms  to  new'  trustees  ;  and  no  prudent 
practitioner  declares  the  trust  of  attendant  terms  bj^  the 
settlement,  lest  the  parties  upon  an  ejectment  should  be 
defeated  by  the  production  of  their  own  conveyance,  upon 
the  face  of  which  it  would  a])pear  that  the  legal  estate 
was  outstanding  ;  and  I  never  sa\\'  or  heard  of  a  separate 
declaration  to  that  effect  on  a  marriage.  In  short,  it  is 
not  the  practice  to  advert  to  terms  of  years  on  a  marriage 
settlement,  or  on  a  devolution  from  ancestor  to  heir, 
although,  no  doubt,  that  may  have  been  done,  and  with 
propriety,  in  some  particular  cases.  It  is  very  rare  indeed, 
that  upon  a  marriage  the  title  is  investigated.  In  ninety- 
nine  cases  out  of  a  hundred,  the  parties  take  up  the  title 
with  the  settlement,  conveyance,   or  will,  under  which 

(■*476) 


OF  ASSIGNMENTS  OF  TERMS. 


549 


the  husband  or  wife  immediately  claims.  This  is  a  fact. 
In  very  few  instances,  and  those  are  upon  the  marriages  of 
persons  of  consequence,  is  the  title  investigated ;  and  it 
has  never  been  the  custom  to  take  a  new  assignment,  or 
make  a  declaration  of  trust  of  a  term  before  assigned  to 
attend  the  inheritance.  At  the  time  of  the  settlement,  a 
fraud  by  the  husband  is  not  contemplated.  No  purchaser 
or  mortgagee  would  accept  the  title  without  inquiring 
for  a  settlement ;  and  as  the  wife  would,  in  most  cases, 
be  entitled  to  dower  if  there  was  no  settlement,  her  con- 
currence in  a  fine  would  be  required,  and  that  would  at 
once  lead  to  a  discovery  of  the  settlement.  Neither  is 
it  usual  to  deliver  to  the  trustees  of  a  marriage  settle- 
ment  the  deeds  relating  to  the  term.  The  tenant  for  life, 
it  is  settled,  is  entitled  to  the  custody  of  the  deeds. 
The  trustees  have  merely  the  custody  of  one  part  of  the 
settlement. 

If  B.h  heir  was  entitled  to  the  benefit  of  the  term  in 
1820,  when  he  made  the  settlement,  can  the  execution 
(*)of  the  settlement  deprive  him  of  its  aid  ?  Is  the  act 
inconsistent  with  the  existence  of  the  term  ?  Was  it 
not  declared  to  attend  the  inheritatice,  and  to  be  in 
trust  for  B.,  his  heijs  and  assigns?  Suppose  the  heir,  as 
is  usual,  to  take  a  life-estate  under  the  settlement,  and  to 
be  in  of  the  old  use,  can  it  be  contended  that  this  portion 
of  the  old  use  is  inconsistent  with  the  title  of  the  trustee, 
although  the  latter  was  consistent  with  the  use  in  fee  in 
the  heir  ?  Why  should  an  act  be  done  to  recognize  the 
term  ?  The  assignment  of  the  term  to  attend  the  inheri- 
tance speaks  at  all  times,  whilst  the  possession  is  consistent 
with  the  title  of  the  trustee  of  the  term.  The  universal 
practice,  not  to  require  assignments  of  attendant  terms  on 
descents  or  settlements,  proves  unequivocally  the  opinion 
of  the  Profession,  that  the  possession  of  the  heir,  and  of  the 
persons  claiming  under  the  settlement,  is  in  law  the  pos- 

(*477) 


CPQ  OF  ASSIGNMENTS  OF  TERMS. 

session  of  the  trustee  of  the  term.  Length  of  time  in  this 
case  is  unimportant.  If  we  alter  the  above  dates,  and 
state  B.h  purchase  to  be  in  1800,  his  death  in  1805,  and 
the  settlement  in  1810,  the  principle  is  precisely  the  same  ; 
and  it  would  startle  most  men  to  hear,  that  because  the 
term  had  not  been  recognized  since  its  assignment  in  1810 
a  surrender  of  it  may  be  presumed. 

If,  however,  the   term  is  a  subsisting  interest  after  the 
settlement,  let  us  suppose  the  life-estate  oi  B.h  heir  under 
the  settlement  to  be  sold  immediately  afterwards,  without 
the  purchaser  taking  an  assignment  of  the  term  ;  does  this 
let  in  the  presumption  of  the  surrender  of  the  term  ?  Now 
the  term,  it  must  be  repeated,  was  assigned  to  attend  the 
inheritance,  and  in  trust  for  B.,  his  heirs  and  assigns.     If 
the  possession  of  the  heir  and  his  family  under  the  settle- 
ment was  not  adverse  to  the  title  of  the  termor,  how  could 
the  title  of  the  purchaser  be  so  ?     The  term  is  a  benefit, 
originally  assigned   as  such,  and  not  an  incumbrance.     A 
man  should  at  least  reyect  a  benefit,  or  act  inconsistently 
(*)with  the  intention  of  the  person  bestowing  it,  before  he 
is  presumed  to  repudiate  it.     The  event,  if  the  event  is  to 
be  looked  at  upon  which  this  question  hinges,  shows  that 
he  required  the  protection  of  the  term  more  than  any  of 
the  former  owners  ;  and  if  his  acts  are  to  be  adverted  to, 
we  shall  find  him  anxiously  obtaining  a  further  assignment 
of  the   term.     For  let  us  further  suppose  that  B.''s  heir, 
before  his  settlement,  confessed  a  judgment  which  was 
not    satisfied,  and    that    the    purchaser    bought  without 
notice  of  it,  and  when  he  did  discover  it,  procured  an 
assignment  of  the  term  to  a  new  trustee,  and  set  up  the 
term  as  a  defence  against  an  execution  upon  the  judg- 
ment :     Unless  the  presumption  of  the  surrender  is  an  in- 
evitable co7iclusion  from  the  fact  of  the  purchase,  it  must  be 
admitted  that  there  is  no  ground  to  presume  a  surrender. 
But  can  it  possibly  be  laid  down  as  a  rule,  that  every 

(*478) 


OF  ASSIGNMENTS  OF  TERMS. 


551 


attendant  term  must  be  presumed  to  be  surrendered 
against  a  purchaser  who  does  not  take  an  assignment  of 
the  term,  or  a  declaration  of  the  trust  of  it  at  the  time  he 
purchased  ?  Why  should  he  do  so  whilst  his  possession 
is  consistent  with  the  title  of  the  termor,  and  expressly 
within  the  limits  of  the  original  trust  ?  Would  not  an 
assignment,  a  week,  or  a  month,  or  a  year  afterwards, 
before  any  adverse  claimant  appeared,  be  sufficient  to 
keep  the  term  on  foot  ?  If  so,  when,  at  what  precise 
moment  does  the  presumption  arise  ? 

Where  an  easement,  for  example,  is  enjoyed,  or  having 
been  enjoyed  is  discontinued  to  be  used,  the  user  or  non- 
user  forcibly  lets  in  the  presumption  of  a  grant  in  the  one 
case,  and  a  surrender  in  the  other.  But  there  the  act  speaks 
for  itself.  The  whole  argument  in  our  case  is,  that  there 
is  a  continued  enjoyment  under  the  original  trusts,  which 
embrace  all  the  persons  ivho  have  successively  enjoyed  the 
estate.  Therefore,  as  an  enjoyment  of  the  easement  would 
of  itself,  without  any  further  assertion  of  right  or  declara- 
tion, (*)exclude  the  presumption  of  a  surrender,  so  here 
the  continued  enjoyment  must  have  the  same  operation. 

Does  then  the  appearance  of  the  adverse  claimant 
weaken  the  purchaser's  case  ?  So  far  from  it,  that  in  the 
great  majority  of  the  cases  in  the  books  the  protection  was 
not  sought  for  until  the  necessity  for  it  appeared.  Equity 
does  not  regard  notice  at  the  time  of  getting  in  the  term. 
The  notice,  to  operate,  must  be  fixed  upon  the  party  at 
the  time  of  the  completion  of  the  purchase.  Equity  too 
will  assist  a  purchaser  where  he  has  not  got  an  assign- 
ment of  the  term,  but  has  the  better  title  to  it.  At  law, 
the  term  is  a  term  in  gross,  and  the  courts  of  law  ought 
not  to  enter  into  a  consideration  of  the  equities  of  the 
parties ;  because  they  have  not  the  necessary  machinery 
to  enable  them  to  come  to  a  due  conclusion  on  the 
equitable  rights.     It  has  been  decided   in  equity,  that  if 

(*479) 


552 


OP  ASSIGNMENTS  OF  TERMS. 


a  mortgngor,  after  a  defective  mortgage  in  fee,  confess 
a  judgment,  the  judgment-creditor,  although  he  has  the 
leo-al  title,  shall  be  postponed  to  the  mortgagee(2:).  So 
it  has  been  held(a)  that  a  prior  mortgagee,  having  a  sub- 
sequent judgment,  may  tack  the  judgment  to  the  mort- 
gage ;  but  a  prior  judgment-creditor  getting  a  subsequent 
mortgage,  cannot  do  so,  because  the  judgment  is  not  a 
specific  lien  upon  those  lands,  that  is,  he  does  not  go  on 
the  security  ;  he  has  not  trusted  to  the  credit  of  the  estate. 
A  judgment-creditor  therefore  does  not,  in  equity,  stand 
on  the  same  footing  with  a  purchaser  of  the  estate  itself. 
In  a  case(6)  where  there  was,  1st,  an  act  of  bankruptcy 
by  A. ;  2dly,  a  settlement  for  valuable  consideration  by 
him,  without  notice  to  the  parties  of  the  act  of  bank- 
ruptcy ;  and  3dly,  a  commission  against  him  ;  although 
(*)the  commission  over-reached  the  settlement,  yet  the 
persons  claiming  under  it  were  held  to  be  entitled  to 
the  benefit  of  an  outstanding  term  created  prior  to  the 
bankruptcy. 

These  cases  show  the  rules  of  equity  which  flow  from 
the  anxiety  of  the  Court  to  strengthen  the  title  and  pro- 
tect the  possession  of  purchasers ;  but  if  at  law  the  out- 
standing term  is  to  be  presumed  to  be  surrendered,  they 
will  no  longer  afford  any  protection  to  purchasers. 

Some  stress,  in  favor  of  the  presumption,  has  been  laid 
on  two  circumstances  ;  the  one,  that  the  estate  has  been 
quietly  enjoyed  ;  the  other,  that  the  deeds  relating  to  the 
term  are  in  the  hands  of  the  owner  of  the  estate.  The 
first  circumstance,  I  have  already  endeavored  to  prove, 
is  against  the  presumption  of  a  surrender.  The  latter 
can   never  operate  in   favor  of  the  presumption,  unless 

(2)  Burgh  V.  Francis,  1  P.  Wms.  279,  cited. 

(a)  Anon.  2  Yes.  G63  ;  Brace  v.  Duchess  of  Marlborough,  2  P. 
Wms.  491. 

(6)  Wilker  v.  Bodington,  2  Tern.  599. 
(*-480) 


OP  ASSIGNMENTS  OF  TERMS.  ceo 

the  courts  of  law  deny  the  power  of  a  man  to  keep  an 
attendant  term  in  a  trustee  and  the  deeds  in  his  own 
possession.  In  no  case  does  the  trustee  of  the  term  keep 
the  deeds.  They  form  part  of  the  muniments  of  title,  and 
are  kept  as  such  by  the  owner  of  the  fee.  If  it  be  neces- 
sary upon  a  sale  to  covenant  for  their  production,  by 
whom  but  the  owner  should  the  covenant  be  entered 
into  ?  and  the  covenant  should  of  course  be  entered  into 
by  the  person  holding  the  deeds.  The  trustee  of  the 
term,  even  if  the  deeds  were  deposited  with  him,  could 
not  be  compelled,  and  would  not  be  advised,  to  covenant 
for  the  production  of  them.  Besides,  the  case  of  Doe  v. 
Scott,  which  will  be  referred  to  presently,  fully  answers 
that  objection.  That  the  judgment-creditor  has  not  the 
possession  of  the  deeds,  and  therefore  the  surrender,  if 
there  be  one,  is  not  likely  to  be  in  his  hands,  cannot 
surely  be  a  ground  to  presume  that  there  actually  is  such 
a  surrender.  If  the  judgment-creditor  has  the  better 
equity,  which  is  the  true  inquiry  in  these  cases,  he  may 
(*)file  a  bill  against  the  purchaser,  who  would  be  com- 
pelled to  answer,  whether  there  was  a  surrender  or  not. 

Suppose  that  the  assignment,  when  it  is  taken,  is  made 
not  by  the  original,  trustee,  who  is  dead,  but  by  his  son, 
who  has  regularly  taken  out  administration  to  him,  does 
that  weaken  the  case  ?  Certainly  the  administrator  could 
not  know  that  his  father  had  not  surrendered  the  term  in 
his  life-time  ;  but  he  was  more  likely  to  know  the  fact  than 
any  other  person.  For  the  family  solicitor  would  of  course 
peruse  the  deed  on  his  behalf;  and  if  a  surrender  had 
been  made  of  the  term,  which  probably  would  have 
passed  through  his  office,  he  would  not  have  suffered  the 
son,  as  administrator,  to  execute  an  assignment  of  it. 
Besides,  if  some  deed  is,  in  the  absence  of  all  evidence 
of  its  actual  execution,  to  be  presumed,  why  should  not 
a  new  assignment   to  attend  be   presumed,  if  that  were 

vol..   I.  70  (*48]) 


5^^  or  ASSIGNMENTS  OF  TERMS. 

necessary  to  support  the  purchaser's  title,  rather  than 
a  surrender,  which  would  operate  to  defeat  it  ?  For  his 
possession  was  consistent  with  the  term,  and  he  trusted 
his  money  on  the  security  of  the  estate  itself,  which  the 
judgment-creditor  did  not. 

Fifteen  years  ago,  it  was  very  much  the  practice  to 
leave  terms  already  assigned  to  attend  the  inheritance,  in 
the  original  trustees,  and  to  be  satisfied  with  a  general 
declaration  of  trust  of  all  attendant  terms.  It  never 
occurred  to  the  highly  respectable  persons  by  whom  that 
practice  was  adopted,  that  a  surrender  of  the  terms  could 
be  presumed.  It  were  difficult  to  contend  that  a  mere 
general  declaration  is  sufficient  to  keep  the  term  alive,  if 
without  it  the  presumption  of  its  surrender  would  be  let 
in.  The  trustee  of  the  term,  by  force  of  the  original 
trust,  becomes,  without  any  further  declaration,  a  trustee 
for  the  purchaser.  Now  if  the  trust  be  a  trust  for  the  pur- 
chaser, and  the  latter  do  no  act  amounting  to  a  disclaimer 
of  the  benefit  of  the  trust,  how  can  it  vary  his  rights,  that 
(*)he  neglected  to  re-declare  that  which  has  already  been 
expressly  declared,  viz.  that  the  trustee  should  hold  the 
term  for  the  original  owner,  his  heirs  and  assigns,  and  to 
attend  the  inheritance  ? 

Lord  Hardwicke,  in  Willoughby  v.  Willoughby,  enters 
very  fully  into  this  doctrine.  He  admitted,  that  where 
an  old  term  has  been  assigned  upon  an  express  trust  to 
attend  the  inheritance  as  settled  by  such  a  deed,  and  the 
conveyancer  is  satisfied  that  the  uses  of  the  inheritance 
have  never  been  barred  till  the  new  purchase  or  settle- 
ment is  made,  he  may  very  safely  rely  upon  it,  because 
the  very  assignment  carries  notice  of  the  old  uses.  Nay, 
where  the  assignment  has  been  generally  in  trust  to  attend 
the  inheritance,  and  the  parties  approve  of  the  old  trus- 
tees, they  may  entirely  rely  upon  it,  especially  in  the  case 
of  a  purchase,  where  the   title-deeds  always  are  or  ought 

(*482) 


OF  ASSIGNMENTS  OF  TERMS.  XKK 

to  be  taken  in  ;  for  if  he  has  the  creation  and  the  assign- 
ment of  the  term  in  his  own  hands,  no  use  can  be  made 
of  it  against  him(c).  Lord  Hardwicke  thus  states  cases 
in  which  terms  may  be  safely  left  in  the  original  trustee  ; 
but  it  never  occurred  to  him  that  the  circumstance  of  so 
leaving  them  would  let  in  the  presumption  that  they  were 
surrendered. 

It  is  said  that  this  doctrine  withdraws  a  large  portion 
of  the  real  property  m  the  kingdom  from  the  jurisdiction 
of  the  courts  of  common  law.  That,  however,  is  not  so  ; 
because  the  title  of  the  termor  is  the  legal  one,  and  there- 
fore those  courts,  in  such  cases,  decide  upon  the  legal 
title,  which  only  is  within  their  province.  The  term  is 
set  up,  not  in  bar  of  the  jurisdiction  over  the  property, 
but  in  consequence  of  the  rule  of  the  court  itself,  which 
forbids  an  equitable  tenant  to  recover  against  the  legal 
title.  If  even  the  doctrine  had  the  supposed  operation, 
(*)that  would  depend  upon  the  law  of  the  land,  and  if  it 
required  alteration  should  be  altered  by  the  Legislature. 
But  the  courts  of  law  have  been  so  anxious  to  support 
attendant  terms,  that  it  has  been  settled  ever  since  the 
reign  of  Charles  2.  that  such  a  term  shall  not  be  barred, 
even  by  a  fine  levied  by  the  owner  of  the  fee,  against 
the  intention  of  the  conusor  ;  because  such  an  owner 
of  the  inheritance  must  be  taken  as  tenant  at  Avill  to  his 
trustee,  and  then  his  possession  is  the  possession  of  the 
trustee(^). 

Mr.  Justice  Buller  observed,  in  Doe  v.  Pegge(e),  that 
so  long  ago  as  the  time  of  Justice  Gundry,  when  an  out- 
standing satisfied  term  was  offered  as  a  bar  to  the  plain- 
tiff's recovery,  that  Judge  refused  to  admit  it,  saying  that 
there  was  no  use  in  taking  an  outstanding  term  but  for 

.(c)   1  Term  Rep.  772. 
(rf)  1  A^entr.  82  ;  2  Ventr.  329 ;  1  Sid.  460. 
(c)  1  Term  Rep.  760,  n. 

(*483) 


^^g  OF  ASSIGNMENTS  OF  TERMS. 

the  sake  of  the  conveyancer's  pocket ;  since  which  time, 
Mr.  Justice  Buller  added,  it  has  been  the  uniform  prac- 
tice, that  if  the  plaintiff  be  entitled  to  the  beneficial  inte- 
rest, he  shall  recover  possession.  It  does  not  appear  in 
what  case  Mr.  Justice  Gundrj  made  this  sweeping  obser- 
vation. It  is,  however,  not  law  at  this  day,  and  indeed 
never  was  to  the  extent  in  which  it  was  laid  down  ;  and 
Mr.  Justice  Buller  lived  to  see  the  law  on  this  subject 
restored,  and  his  own  opinions  over-ruled (/*).  In  the 
same  case  of  Doe  and  Pegge,  Lord  Mansfield  observed, 
that  trusts  are  a  mode  of  conveyance  peculiar  to  this  country. 
In  all  other  countries  the  person  entitled  has  the  right 
and  possession  to  himself;  but  in  England  estates  are 
vested  in  trustees,  on  whose  death  it  becomes  difficult  to 
find  out  their  representatives,  and  the  owner  cannot  get 
a  complete  title.  If  it  were  necessary  to  take  assignments 
of  satisfied  terms,  terrible  inconveniences  would  ensue, 
(*)from  the  representatives  of  the  trustees  not  being  to  be 
found.  Sir  Edward  Northey's  clerk  was  trustee  of  near 
half  of  the  great  estates  in  the  kingdom.  On  his  death 
it  was  not  known  who  was  his  heir  or  relative.  So  that, 
where  a  trust-term  is  a  mere  matter  of  form,  and  the  deeds 
mere  muniments  of  another's  estate,  it  shall  not  be  set  up 
against  the  real  owner.  It  must  excite  surprise,  that 
Lord  Mansfield  should  have  imagined  that  any  rule,  whose 
tendency  it  was  to  subvert  what  was  peculiar  to  this 
country,  could  long  subsist  while  the  peculiarity  itself 
was  allowed  to  exist.  As  well  might  you  admit  the  rule 
which  excludes  the  half  blood,  and  yet,  in  the  face  of 
contrary  evidence,  presume  that  a  brother  of  the  half 
blood  proceeded  from  the  same  couple  of  ancestors  as 
the  person  last  seised(I).     Is  the  whole  system  of  trusts 

(/)  See  Doe  v.  Staple,  2  Term  Rep.  684. 

(I)  This  argument,  in  this  and  other  passages,  speaks  of  the  law  as 

(*484) 


OF  ASSIGNMENTS  OF  TERMS.  ct^ 

to  be  subverted  because  sometimes  an  obscure  trustee  dies 
without  relations  ?  Or  is  the  legal  estate  to  subsist,  or 
not,  according  to  the  expense  which  a  re-conveyance  may 
occasion  in  any  given  case  ?  This  doctrine  never  could 
stand  the  test  of  an  accurate  investigation,  and  has  long 
since  been  over-ruled.  They  who  have  best  understood 
the  doctrine  of  equity,  have  powerfully  deprecated  their 
adoption  by  courts  of  law. 

In  Goodtitle  v.  Morgan(g),  a  mortgage  for  nine  hun- 
dred and  ninety-nine  years  was  made  in  1761,  by  Jones, 
the  owner  of  the  fee.  In  1767,  Jones  made  a  mortgage 
in  fee  to  Morgan ;  and  in  July  1769  he  made  a  mortgage 
in  fee  to  another  person.  In  1768,  the  nine  hundred  and 
ninety-nine  years  term  was  assigned  to  a  trustee  for  Jones, 
and  to  attend  the  inheritance.  The  first  mortgage  in  fee 
(*)was  before  that  assignment,  and  the  last  after  it.  In 
December  1769,  he  made  a  mortgage  in  fee  to  Sprigg, 
and  the  term  of  nine  hundred  and  ninety-nine  years  was 
assigned  to  a  trustee  for  Sprigg,  and  he  was  allowed  to 
recover  in  ejectment,  on  the  demise  of  his  trustee,  against 
the  two  prior  mortgagees  in  fee ;  although  it  was  speciously 
argued,  that  if,  previous  to  the  conveyance  in  1769  to 
Sprigg,  the  defendants  had  brought  ejectments  upon  their 
mortgages,  neither  Jones  nor  his  trustee  could  have  set 
up  his  term  as  a  bar  to  their  ejectment;  and  that,  if 
Jones  himself  could  not  set  up  the  term,  it  seems  to  be 
absurd  to  say  that  those  who  claim  under  him  can,  for 
they  cannot  claim  a  greater  estate  than  he  had.  But  this 
argument  did  not  prevail,  although  Mr.  Justice  Buller 
did  not  put  the  decision  on  the  right  grounds.  The  case 
is  an  authority  for  my  position.  It  decides  clearly  that  a 
surrender  of  the  term  cannot  be  presumed  on  the  ground 

ig)  1  Term  Rep.  755. 

it  was.  The  reader  is  aware  that  the  half  blood  is  not  now  excluded, 
and  that  fines  are  abolished. 

(*4S5) 


558  O^  ASSIGNMENTS  OF  TERMS. 

that  the  first  mortgagee  did  not  take  an  assignment  or 
a  declaration  of  trust  of  it.  A  second  mortgagee,  there- 
fore, procuring  an  assignment  of  the  term,  must  prevail 
at  law,  and  also  in  equity,  unless  he  had  notice  at  the 
time  he  advanced  his  money  of  the  first  mortgage. 

In  Doe  V.  Staple(^),  Lord  Kenyon,  C.  J.  said,  that  he 
extremely  approved  of  what  was  said  by  Lord  Mansfield 
in  the  case  of  Lade  v.  Holford,  that  he  would  not  suffer 
a  plaintiff  in  ejectment  to  be  nonsuited  by  a  term  standing 
out  in  his  own  trustee,  or  a  satisfied  term  set  up  by  a 
mortgagor  against  a  mortgagee,  but  would  direct  a  jury 
to  presume  a  surrender.  He  added,  "  I  much  approve 
of  that ;  and  where  a  surrender  is  presumed,  there  is  an 
end  of  the  legal  title  created  by  the  term." 

In  Doe  V.  Sybourn(i),  the  same  learned  Judge  said, 
that  in  all  cases  where  trustees  ought  to  convey  to  the  bene- 
ficial (^)owner,  he  would  leave  it  to  the  jury  to  presume 
where  such  a  presumption  might  reasonably  be  made  ;  that 
they  had  conveyed  accordingly,  in  order  to  prevent  a  just 
title  from  being  defeated  by  a  mere  matter  ofform(k). 

Now  these  rules,  it  will  be  observed,  are  not  in  favor 
of  presuming  a  surrender  of  a  term  expressly  assigned  to 
attend  the  inheritance  against  a  purchaser.  The  doctrine 
that  a  mortgagor  shall  not  set  up  an  attendant  term  against 
a  mortgagee  does  not  warrant  the  presumption  of  a  sur- 
render in  this  case.  In  the  former  case,  there  are  only 
the  rights  of  the  mortgagor  and  mortgagee  still  in  ques- 
tion, and  the  presumption  is  made  in  favor  of  the  mort- 
gagee. The  claim  of  a  third  person  does  not  intervene. 
But  does  it  follow  that  a  surrender  should  be  presumed, 
not  as    between    the  mortgagor  and  mortgagee,   but  as 

{k)  2  Term  Rep.  696. 
(i)  7  Term  Rep.  2. 

{k)  And  see  Goodtitle  v.  Jones,  7  Term  Rep.  47 ;  Roe  v.  Reade,  8 
Term  Rep.  IIS. 

(*486) 


OF  ASSIGNMENTS  OF  TERMS. 


669 


between  two  innocent  mortgagees,  both  claiming  under 
the  same  mortgagor,  where  one,  after  the  execution  of 
both  of  the  mortgages,  has  obtained  an  assignment  of  the 
term  ?  Why  is  he  to  be  deprived  of  the  bene  fit  of  his  dili- 
gence ?  Why  is  this  plank  in  the  shipwreck  to  be  taken 
from  him  ?  The  doctrine  can  with  much  less  propriety 
be  applied  where  the  person  who  has  obtained  an  assign- 
ment of  the  term  is  an  actual  purchaser  of  the  estate, 
whilst  the  person  whom  he  seeks  to  exclude  by  the  term 
is  a  mere  judgment-creditor,  having  only  a  general  lien 
over  all  the  seller's  property,  and  who  perhaps  suffered 
the  judgment  to  remain  dormant  many  years.  The  objec- 
tion is  not,  that  a  surrender  cannot  be  presumed  against 
an  owner  of  the  inheritance^  but  that  the  presumption 
ought  not  to  be  made  against  a  purchaser  of  the  inherit- 
ance, where  the  contest  is  between  him  and  incum- 
brancers claiming  under  the  seller,  but  of  whose  claims 
(*)he  had  not  notice.  Even  the  case  of  Goodtitle  v.  Mor- 
gan, in  the  decision  of  which  Mr.  Justice  Buller  concurred, 
proves  that  the  mere  circumstance  of  executing  mort- 
gages without  assigning  the  term,  does  not  let  in  the  pre- 
sumption of  a  surrender  against  a  subsequent  mortgagee 
who  takes  an  assignment  of  the  term.  Upon  principle,  it 
seems  impossible  to  contend  that  the  circumstance  of  the 
last  mortgagee  not  procuring  the  assignment  at  the  very 
moment  he  advances  the  money  can  let  in  the  presump- 
tion of  a  surrender. 

The  rule,  that  where  trustees  ought  to  convey  to  the 
beneficial  owner  a  jury  may  presume  such  a  conveyance, 
in  order  to  prevent  a  just  title  from  being  defeated  by 
a  mere  matter  of  form,  is  not  denied  to  be  a  wise  one  ; 
but  it  does  not  apply  to  the  case  under  discussion  ;  for  in 
this  case  the  trustees  ought  not  to  surrender  the  term  ;  to 
do  so  would  be  to  commit  a  breach  of  trust ;  and  the 
presumption,  if  it  is  made,  has  not  the  merit  of  preventing 

(*487) 


560 


OF  ASSIGNMENTS  OF  TERMS. 


a  just  title  from  being  defeated  by  a  mere  matter  of  form, 
but  lets  in  one  title  to  the  destruction  of  another,  where 
the  equities  are  at  least  equal ;  for  if  the  subsequent  pur- 
chaser has  not  equal  equity  with  the  prior  incumbrancer, 
equity  itself  will  deprive  him  of  the  protection  of  the 
legal  term,  although  beyond  dispute  an  existing  one. 

The  case  of  Keene  v.  Deardon(/),  proves,  that  posses- 
sion, where  it  is  consistent  with  the  title  of  a  trustee, 
cannot  be  deemed  adverse  to  it ;  and  that  no  presumption 
of  a  surrender  can  be  made  contrary  to  an  express  trust. 
This  proves  both  the  propositions  in  the  case  under  dis- 
cussion. Possession  is  certainly  evidence  of  title,  but  it 
is  not  evidence  of  the  quality  of  the  title.  It  does  not 
prove  whether  you  are  seised  in  fee,  or  have  a  mere 
chattel  interest ;  nor  does  it  prove  whether  your  title  is 
legal  or  equitable.  And  therefore  possession  may  always 
(*)be  shown  to  be  consistent  with  the  title  of  a  trustee  of 
an  attendant  term.  After  an  express  trust  to  attend  the 
inheritance,  a  surrender  of  the  term  should  never  be  pre- 
sumed where  the  rights  of  the  cestui  que  trust  are  not 
invaded  by  the  trustee,  and  the  cestui  que  trust  has  done 
no  act  to  disavow  his  right  to  the  trust  of  the  term. 

The  case  of  Doe  v.  Scott(w),  is  a  strong  authority 
against  the  doctrine  of  presumption.  In  1727,  Lord 
Oxford  executed  a  mortgage  for  a  term  of  one  thousand 
years.  In  1751,  Lord  Oxford  executed  a  marriage  settle- 
ment, wherein  it  was  stated,  that  27,000/.,  part  of  the 
lady's  fortune,  was  to  be  applied  to  the  discharge  of  the 
mortgage.  Since  that  time  no  mention  was  made  of  it, 
nor  was  there  any  other  evidence  of  its  existence,  till,  in 
a  mortgage-deed  of  the  3d  of  December  1802,  this  term, 
together  with  another  outstanding  term  of  1709,  was  as- 
signed to  secure  the  mortgage-money.     It,  was  insisted 

(/)  8  East,  248.  (m)  1 1  East,  478. 

(*488) 


OF  ASSIGNMENTS  OF  TEiiMS.  en-i 

that  a  suiTender  of  the  term  ought  to  be  presumed,  on 
tsvo  grounds:  1st,  the  recital  in  the  deed  of  1751,  that 
there  was  an  adequate  sum  to  be  applied  in  discharge  of 
the  mortgage,  and  no  evidence  of  the  term  having  been 
acted  upon  or  recognized  from  that  period  until  1802, 
when  it  was  assigned  as  an  outstanding  term  ;  and,  2dly, 
the  possession  of  the  deed  itself  by  Lord  Oxford,  the 
owner  of  the  inheritance,  which  could  not  have  happened 
unless  the  mortgage  had  been  paid  off.  The  learned 
Judge  who  tried  the  cause  held,  that  although  no  notice 
had  been  taken  of  the  term  from  1751  till  1802,  yet  the 
owner  of  the  inheritance  having  then  joined  with  the  re- 
presentatives of  the  termors  in  executing  a  deed,  in  which 
it  was  recited  that  the  term  had  not  been  surrendered, 
he  thought  that  a  surrender  could  not  be  presumed.  The 
Court  of  King's  Bench  were  of  the  same  opinion.  Lord 
Ellenborough,  C.  J.  said,  that  tliere  was  no  purpose  of 
(*)justice  to  be  ans',vered  by  presuming  a  surrender  in 
this  case  ;  nor  was  it  for  the  interest  of  the  owner  of  the 
inheritance  to  have  it  assigned  to  a  trustee  to  attend  the 
inheritance. 

Now  this  case  went  much  farther  than  it  is  necessary 
to  push  the  doctrine  in  the  case  under  discussion.  In 
1751,  a  sum  was  appropriated  to  discharge  the  incum- 
brance ;  and  as  the  deeds  were  in  Lord  Oxford's  posses- 
sion, the  mortgage  must  have  been  paid  off.  The  term 
had  not  been  assigned  to  attend  the  inheritance,  and, 
therefore,  for  fifty-one  years,  the  period  between  1751 
and  1 802,  the  term  was  an  incumbrance,  and  not  a  benefit ; 
and  yet  the  assignment  of  1802  was  held  to  be  evidence 
against  a  surrender.  Why  was  it  stronger  evidence  than 
the  assignment  of  the  term  in  trust  for  the  purchaser 
in  our  case  ?  Here,  too,  the  term  had  been  assigned  to 
attend  the  inheritance,  and  therefore  the  possession  was 
consistent  with  the  express  trust  of  the  term  ;  whereas  in 

VOL    I.  71  (*489) 


rQ2  OF  ASSIGNMENTS  OF  TERMS. 

Lord  Oxford's  case  the  freeholder's  possession  was  only 
consistent  with  the  legal  title  in  the  mortgagee,  under  the 
equitable  rule,  that  the  mortgagee,  when  paid  off,  became 
a  trustee  for  the  owner  of  the  inheritance.  It  is  said, 
however,  that  there  it  was  for  the  benefit  of  the  owner 
that  the  term  should  be  kept  on  foot.  What  circumstance 
in  the  supposed  case  required  that  the  term  should  be 
presumed  to  be  surrendered  ?  Was  not  the  purchaser  the 
owner  of  the  estate  ?  And  was  it  not  for  his  benefit  that 
the  term  should  be  deemed  a  subsisting  interest  ? 

Lord  Eldon's  opinion  docs  not  accord  with  the  doctrine 
of  presuming  surrenders  of  attendant  terms.     In  Evans  y. 
Bicknell(w),  which  was  decided  in  1801,   that  learned 
Judge  observed,  that  it  seemed  to  him  rather  surprising, 
if  he  might  presume  to  say  so,  that  Lord  Mansfield,  who 
(*)concurred   with  Mr.  Justice   Buller  in  a  great  many  of 
these  equitable  principles  in  a  court  of  law,  should  not 
have  attended   to  these  distinctions,  which   perhaps  will 
be  found  in  the  very  principles  upon  which   the  Court  of 
Chancery  exists.     Titles    to  property  may   possibly  be 
found  to  be  very  considerably  shaken  by  the  doctrine  of 
the  Court  of  King's  Bench  as  to  satisfied   terms.     The 
law  as  to  that  here  is,  that  a  second  mortgagee  having  no 
notice  of  the  first  mortgage,  if  he  can  get  in  a  satisfied 
term,  would  do  that  which  is  the  true  ground  of  the  de- 
cision, though  it  is  not  put    upon    that  by  Mr.  Justice 
Buller  ;  he  would,  as  in  conscience  he  might,  get  the  legal 
estate,  and  by  virtue  of  that  protect  his  estate  against  the 
first  mortgagee,  having  got  a  prior  title,  the   conscience 
being  equal  betu  een  the  parties.     Wiien  once  it  is  said  at 
law  that  a  satisfied  term  should  not  be  set  up  in  ejectment, 
the  whole  security  of  that  title  is  destroyed  ;  and  there- 
fore, even  with   tlie  modern  correction  that   doctrine  has 
received   in  the  late  cases,  which  is,  that  you  may  set  up 

(n)  6  Ves.  jun.  184. 
(*490) 


OF  ASSIGNMENTS  OF  TERMS.  5g3 

the  term,  though  satisfied,  and  put  it  as  a  question  to  the 
jury,  whether  an  assignment  is  to  be  presumed,  it  seemed 
to  his  Lordship  very  dangerous  between  purchasers ;  and 
the  leaning  of  the  Court  ought  to  be  that  it  was  not  as- 
signed :  and  he  fully  concurred  with  Lord  Kenyon,  that 
it  is  not  fit  for  a  Judge  to  tell  a  jury  they  are  to  presume 
a  term  assigned  because  it  is  satisfied ;  but  there  ought  to 
be  some  dealing  upon  it,  or  you  take  from  a  purchaser  the 
effects  of  his  diligence  in  having  got  in  the  legal  estate, 
to  the  benefit  of  which  he  is  entitled.  Then  suppose  the 
law  takes  upon  itself  to  decide  the  question  between  pur- 
chasers upon  this  subject,  can  it  decide  upon  the  same 
rules  as  courts  of  equity,  as  upon  the  question  of  notice  ? 
It  will  be  said  upon  this  doctrine  a  court  of  equity  does 
inquire  into  this  ;  and  it  is  a  rule  of  property  in  equity, 
and  therefore  ought  to  be  a  rule  of  property  at  law.  But 
(*)how  has  it  become  a  rule  of  property  in  equity  ?  In 
equity,  the  first  mortgagee  may  ask  the  second  whether 
he  had  notice.  If  that  defendant  positively  denies  notice, 
and  one  witness  only  is  produced,  to  the  fact  of  notice, 
if  the  denial  is  as  positive  as  the  assertion,  and  there  is 
nothing  more  in  the  case,  a  court  of  equity  will  not  take 
the  benefit  of  the  term  from  the  second  mortgagee,  placing 
as  much  reliance  on  the  conscience  of  the  defendant  as 
on  the  testimony  of  a  single  witness,  without  some  cir- 
cumstances attaching  a  superior  degree  of  credit  to  the 
latter.  It  is  impossible,  therefore,  that  the  rule  of  pro- 
perty can  be  said  to  be  the  same  as  at  law ;  and  if  it 
stands  upon  different  principles,  in  fact,  it  is  perfectly 
different. 

In  Maundrell  v.  Maundrell(o),  which  was  decided  in 
1804,  the  question  arose,  whether  a  purchaser  could  pro- 
tect himself  against  dower  by  a  prior  term  of  years,  unless 
it  was  actually  assigned  to  a  trustee  for  him ;  and  the 

(o)   10  Ves.  jun.  246. 

(*491) 


564 


OF  ASSIGNMENTS  OF  TEUMS. 


Lord  Chancellor  ultimately  decided  that  he  could  not ; 
because  such  had  been  considered  the  general  rule  ;  but 
his  Lordship,  upon  principle,  thought  that  the  purchaser 
would,  as  in  other  cases,  be  entitled  to  the  benefit  of  the 
term  without  an  actual  assignment.  He  said  that  he 
doubted  whether  it  was  possible  upon  principle,  to  say  the 
assignment  of  a  term  that  has  been  once  assigned  to  attend 
the  inheritance,  is  necessary  from  time  to  time  whenever 
that  inheritance  is  made  the  subject  of  purchase(7?J. 

The  opinion  of  Lord,  Eldon  therefore  is,  that  an 
assignment  of  the  term  is  not  necessary  upon  every 
new  purchase ;  and  this  is  a  powerful  authority  against 
the  presumption  of  a  surrender,  on  the  mere  ground  that 
the  term  has  been  left  undisturbed.  Maundrell  v.  Maun- 
drell  is  not  an  authority  requiring  an  assignment  in  every 
(*)case  upon  every  new  purchase  ;  but  whilst  it  estab- 
lishes the  necessity  of  an  actual  assignment,  in  order  to 
bar  dower,  is  a  grave  authority  for  the  continued  existence 
of  the  term  in  other  cases,  although  it  is  left  in  the  jiame 
of  the  original  trustee(I). 

In  the  late  case  of  Doe  on  the  demise  of  Burdett  v. 
Wright,  B.  R.  T.  T.  1819,  a  term  assigned  in  1735,  to 
raise  an  annuity,  and  subject  thereto  to  attend  the  inhe- 
ritance, was  presumed  to  be  surrendered.  No  act  had 
been  done  to  acknowledge  the  term,  except  that,  upon  a 
sale  in  1801  of  a  small  part  of  the  estate,  for  redeeming 
the  land-tax,  the  owner  had  covenanted  to  produce  to  the 
purchaser  the  deeds  creating  and  assigning  the  term. 
There,  however,  the  ejectment  was  by  a  person  claiming 
as  heir,  against  a  person  who  claimed  also  as  \\e'n-{q). 

But  in   the  cases  of  Doe  v.  Hilder,  and  Doe  v.  Stace, 

{y)    10  Ves.  jun.  259  ;  and  see  p.  26D. 
-  {q)  MS. ;  S.  C.  2  Barn.  &  Aid.  710. 


(I)  This  also  applies  to  the  old  law.     Now  a  Avife's   right  to  dower 
is  in  her  husband's  power. 
t*492) 


OF  ASSIGNMENTS  OF  TERMS. 


565 


B.  R.(r),(ll),  which  were  decided  afterwards  in  the  same 
(*)term,  it  aiDpeared  that  the  ejectment  was  brought  by 
a  judgment-creditor,  who  had  issued  an  elegit  against 
Richard  Newman.  In  1762  a  regular  mortgage-term  of 
one  thousand  years  was  created  by  Francis  Hare  Naylor, 
the  owner  of  the  fee,  and  several  other  charges  were 
made  previously  to  and  in  the  year  1770.  In  1771, 
Naylor  devised  the  estate  to  trustees,  to  sell.  In  1779, 
they  sold,  and  conveyed  to  John  Newman  in  fee,  and  the 
one  thousand  years  term  was,  in  consideration  of  the  pay- 
ment of  the  mortgage-money,  assigned  by  a  separate  deed 
(7th  October,  1779)  to  a  Mr.  Denman,  his  executors,  ad- 
ministrators and  assigns,  "  in  trust  for  the  said  John 
Newman,  his  heirs  and  assigns,  and  to  be  assigned,  con- 
veyed, and  disposed  of,  as  he  or  they  should  direct  and 
appoint.     And  in  the  mean  time,  and  until  such  appoint- 

,  (r)   MS.  ;  S.  C.  2  Barn.  &  Aid.  782. 

(II)  Another  question  of  great  importance  arose  in  these  causes,  which 
it  became  unnecessary  to  decide,  viz.  whethey  the  statute  of  frauds 
enabled  a  judgment-creditor,  under  an  elegit,  to  take  the  term  in  exe- 
cution. The  statute,  it  is  decided,  did  not  intend  to  place  the  right  of 
the  creditor  on  the  same  footing  against  an  equitable  as  against  a  legal 
estate  ;  and  it  does  not  enable  him  to  take  in  execution  an  equity  of 
redemption,  or  a  trust  in  a  leasehold.  Now  every  attendant  term  is  at 
law  a  chattel  real — a  term  in  gross,  and  therefore  cannot  be  taken  in 
execution  for  the  debt  of  the  cestui  que  trust.  The  Legislature  never 
intended  to  reduce  a  fee-simple  estate  with  an  attendant  term  to  a  level 
with  a  chattel  interest,  and  to  give  the  right  of  execution  as  if  it  were 
a  chattel  interest,  where,  under  the  same  circumstances,  a  mere  chattel 
interest  would  not  be  within  the  statute.  The  act  in  all  its  provisions 
is  inaccurately  framed,  and  it  is  not  desirable  that  another  new  con- 
struction should  at  this  day  be  given  to  it.  A  term  outstanding  has 
always  been  considered  to  protect  against  judgments  ;  but  if  the  con- 
struction above  alluded  to  were  to  prevail,  it  would  be  necessary  to 
search  for  judgments  in  every  case,  in  order  to  ascertain  whether  any 
writ  of  execution  had  issued,  or  rather  the  term  would  be  no  protec- 
tion, because  it  could  not  be  discovered  whether  a  writ  had  issued  ; 
but  see  Doe  v.  Phillips,  1  Crompt.  &  Mee.  450. 

(*493) 


^QQ  OF  ASSIGNMENTS  OF  TERMS. 

7nent  to  attend  and  wait  upon  the  freehold  and  inheritance 
of  the  same  premises,''^  to  protect  the  same  against  mesne 
incumbrances.     In   October  1790,    John  Newman  died 
intestate,  leaving  Richard   his  brother  and  heir.     In  No- 
vember 1797,  Richard  died,  leaving  Richard,  his   son,  his 
heir,  then  a  minor.     On  23d  August  1808,  the  last  named 
Richard  gave  a  warrant  of  attorney  to  the   lessor  of  the 
plaintiff  to   enter  up  judgment  for  4,000/.,  which  was 
immediately  done.     In  1810,  Mr.  Denman,  the   trustee 
of  the  term,  died   intestate,   leaving  John  Denman,  his 
son  and  next  of  kin.     In  October  1814,   Richard  New- 
man, on  his  marriage,  settled  the  estate  to  the  use  of  him- 
self for  life,  with  remainder  over  in  strict  settlement.     In 
June  1810,  he  sold  and    conveyed   his  life-estate  to  his 
mother,  and  she  devised   the  estate  to  the   persons  under 
whom  the  defendant  claimed   as  tenant.     In    1817,  the 
(*)lessor  of  the  plaintiff  issued  an  elegit,  without  having 
revived  the  judgment,  and  had  an  inquisition  taken  there- 
on, which  was  set  aside  for  irregularity.     In  1818,  he  re- 
vived the  judgment  by  scire  facias^  and  issued  an  elegit ; 
and  on  13th  March  1818  an  inquisition  was  taken  there- 
on, and  then  the  ejectment  was  brought.     On  17th  March 
1819  (after  the  commencement  of  the  ejectment),  John 
Denman,  as  the  son  and  next  of  kin  of  Mr.  Denman,  took 
out  letters  of  administration  to  him,  and  by  a  deed,  dated 
the  19th  of  the  same  month,  he,  by  the  direction  of  the 
devisees  of  the   purchaser,  in  the  usual  and  regular  way, 
assigned  the  term  to  John  Newman,  a   trustee  for  them, 
and  to  attend  the  inheritance.      The  deed  creating  the  term 
ivas  produced  by  the  purchaser  of  the  largest  part  in  value 
of  the  estate  comprised  in  it.     The  deed  assigning  the  term 
to  attend  on  the  purchase  by  Mr.  Newman,  in  1779,  and  the 
last  deed  of  assignment,  were  produced  by  the  defendants. 
The  learned  Judge  thought  that  the  question  as  to  a  sur- 
render ought  to  go  to  a  jury.     His  Lordship  told  them, 

(*494) 


OF  ASSIGNMENTS  OF  TERMS. 


567 


that  it  seemed  to  him  that  as  a  trustee  was  appointed 
forty  years  ago,  and  had  never  done  any  act,  but  that  the 
party  who  was  beneficially  interested  had  always  acted 
on  the  property,  he  (the  learned  Judge)  could  not  consider 
an  administration  taken  out  but  a  week  before  the  assign- 
ment as  at  all  effective  ;  that  he  considered  to  be  done 
merely  for  the  purpose  of  setting  up  this  old  term  to 
defeat  the  plaintiff;  and  under  such  circumstances  he 
should  leave  it  to  them  to  presume  it  had  been  surren- 
dered, vi'hich  according  to  the  learned  Judge's  report 
the  jury  expressly  said  they  did.  The  Court  of  King's 
Bench,  after  hearing  the  case  argued  at  considerable 
length,  and  taking  time  to  consider,  confirmed  the  learned 
Judge's  direction. 

Lord  Chief  Justice  Abbott  delivered  the  following 
judgment,  according  to  the  short-hand  writer's  note  : 

(*)"  This  was  an  action  of  ejectment  tried  before  my 
brother  Park  at  the  last  assizes  for  the  county  of  Sussex. 
The  title  of  the  lessor  of  the  plaintiff  was  upon  a  judg- 
ment recovered  in  the  year  1808,  against  Richard 
Newman,  for  8,000/.  and  a  writ  of  elegit  and  inquisition 
thereupon  in  the  year  1818,  finding  Richard  Newman 
seised  in  fee  of  the  premises  in  question.  It  was  further 
])roved,  that  the  defendant  occupied  the  land  as  a  tenant, 
and  had  declared  that  he  considered  it  to  belong  to 
Richard  Newman,  and  had  delivered  to  him  a  notice  of 
a  judgment  received  in  June  1818,  from  the  lessor  of  the 
plaintiff.  On  the  part  of  the  defendant  it  was  proved, 
that  on  the  2od  of  June  1762,  Francis  Hare  Naylor  had 
conveyed  the  premises  in  question,  inter  alia,  to  Thomas 
Carter,  for  a  term  of  one  thousand  years,  by  way  of  mort- 
gage, for  securing  the  sum  of  6,000/. :  That  in  the  year 
1779,  the  mortgage  was  paid  off,  and  deeds  were  then 
executed,  whereby,  in  effect,  the  term  was  assigned  to 
^Villiam  Denman,  in  trust  for  John  Newman,  a  purchaser 

(*495) 


568 


OF  ASSIGNMENTS  OF  TERMS. 


of  the  premises,  nnd   to  attend   the  iiiheritnnce  :  That  in 
the  month  of  October  1814,  the  said  Richard  Newman,  to 
whom  the   premises  had   descended  from   the   purchaser 
John  Newman,  made  a  settlement  upon  his  intended  mar- 
riage, whereby  he  conveyed   the  premises  to  trustees  and 
their  heirs,  to  the  use  of  himself  for  life,  with  a  remainder 
to  his  intended  wife  for  life,  remainder  to  the  issue  of  the 
marriage,  and    reversion  to  himself  in  fee  :     That  in  the 
year  1816,  the  said   Richard  Newman  conveyed   his  life- 
estate  to   Sarah  Newman,   the  mother  of  Richard,  as  a 
security  for   1,162/.,  which  aj)pears  to  have  been  money 
then  due  from  him  to  her  :  That  Mrs.  Newman,  the  mother, 
died   in  the  year  1817,  having  previously  devised  her  in- 
terest to  some  other  relations  :     That  William  Denman,  to 
whom  the  term  had  been  assigned  in  trust,  to  attend  the 
inheritance  as  aforesaid,  died   about  four  years  ago  ;  and 
(*)on  the  19th  of  March  last,  his  son  took  out  administra- 
tion to  him,  and  executed  a  deed,  purporting  to  be  an  as- 
signment of  the  term,  to  a  person  therein  named,   in  trust 
for  the  devisees  of  Mrs.  Newman,  the  mother.     Upon  this 
evidence,    two  questions  were  made  at   the    trial :    first, 
whether  the  term  might  be  presumed  to  have  been  sur- 
rendered and  merged  in  the  inheritance ;  and  if  it  might 
not,  then,  whether  it  w^as  a  trust  within  the  tenth  section 
of  the  statute  of  frauds,  so  as  not  to  stand    in  the  way  of 
the  execution    on   the  judgment.      The    learned   Judge 
thought  this  a  case  in  which   a  jury   might  presume  a 
surrender  of  the  term  ;  and  the  matter  being  left  to  them, 
they  found  that  the  term  had  been  surrendered.    A  motion 
was  afterwards   made   for  a   nonsuit,  according  to  leave 
given  by  the  learned  Judge.     A  rule   to  show  cause  was 
granted ;  and  the  matter  was  argued  before  us  very  fully  and 
ably.     The  same  two  points  were  made  ;  and  with  respect 
to  the  statute  of  frauds  a  further  point  also,  it  being  con- 
tended, first,  that  the  trust  of  a  term  of  years  is  not  within 

(*496) 


OF  ASSIGNMENTS  OF  TERMS.  ^gg 

the  tenth  section  of  the  statute  ;  and,  secondly,  if  it  be, 
yet  in  this  particular  case,  the  statute  would  not  help  the 
plaintiff,   because    the    termor  must  be  considered  as  a 
trustee,  not  for  the  debtor,  but   for  the  devisees  of  Mrs. 
Newman,  at   the  time   of  issuing   the  execution.     Upon 
these  points,  however,  it  is  not  necessary  for  us  to  pro- 
nounce any  judgment;  because  we  are  of  opinion,  that  in 
this  case  the   surrender  of  the  term  might  lawfully  and 
reasonably   be   presumed.     It  is  obvious    that  if  such  a 
surrender  had  been  made,  it  would  not  probably  be  in  the 
power  of  the  plaintiff  to  produce  it,  he   being  a  stranger 
to  the  particulars  of  the  title  which  his  debtor  had   in  the 
land.     The  principal  ground  of  objection  to  the  presump- 
tion was,  that  such  a  presumption  had  in  no  instance  hi- 
therto been  made  against  the  owner  of  the  inheritance,  the 
former  instances  being  (as  it  was  said)  all   cases  of  pre- 
sumption (*)in  favor  of  such   owner.     But  this  proposi- 
tion appears  to  be  too  extensively  laid  down.     One  of  the 
instances  in  which  it  has  been  said   that  a  surrender  shall 
be  presumed,  is  the  case  of  a  mortgagor  setting  up  a  term 
against  his  own  mortgagee ;  and  this  is  said  generally, 
and  without  distinction,  between  a  mortgagee  in  fee  or  for 
years.     But  if  such  a  term  be  set  up  against  a  mortgagee 
for  years,  and  a  surrender  presumed,  the   presumption  is 
made  against,  and   not  in  favor  of,  the  owner  of  the  in- 
heritance.    It  is  made  against  his  interest  at  the  time  of 
the  trial,  but  in  favor  of  his  honesty  at  the   time  of  the 
mortgage  ;  for  if  the  term  existed  at  the  time  of  the  mort- 
gage, he  ought  in  honesty  to  have  secured   the  benefit  of 
it  to  the  mortgagee  at  that  time,  and  not  to  have  reserved 
it  in  his  own  power  as  an  instrument  to  defeat  his  mort- 
gage ;  and  upon  the  same  principle  on  which  a  surrender 
is  presumed  in  the  case  of  mortgagor  and  mortgagee,  we 
think  it  may  reasonably  be  presumed  in  the  present  case  ; 
though  the  principle  is  applicable   not  to  the  judgment- 

voL.   I.  72  (*497) 


570 


OF  ASSIGNMENTS  OF  TERMS. 


creditor  but  to  other  persons.  One  of  the  general  grounds 
of  a  presumption  is  the  existence  of  a  state  of  things 
which  may  most  reasonably  be  accounted  for  by  suppos- 
ing the  matter  presumed.  Thus,  the  long  enjoyment  of 
a  right  of  way  by  A.,  to  his  house  or  close,  over  the  land 
of  B.,  which  is  a  prejudice  to  the  land,  may  most  reason- 
ably be  accounted  for  by  supposing  a  grant  of  such  right 
by  the  owner  of  the  land  ;  and  if  such  a  right  appear  to 
have  existed  in  ancient  times,  a  long  forbearance  to 
exercise  it,  which  must  be  inconvenient  and  prejudicial 
to  the  owner  of  the  house  or  close,  may  most  reasonably 
be  accounted  for  by  supposing  a  release  of  the  right.  In 
the  first  class  of  cases,  therefore,  a  grant  of  the  right,  and 
in  the  latter,  a  release  of  it,  is  presumed.  Where  a  term 
of  years  becomes  attendant  upon  the  reversion  and 
inheritance,  either  by  operation  of  law,  or  by  special 
(*)declaration  upon  the  extinction  of  the  objects  for  which 
it  was  created,  the  enjoyment  of  the  land  by  the  owner 
of  the  reversion,  thus  become  the  cestui  que  trust  of  the 
term,  may  be  accounted  for  by  the  union  of  the  two 
characters  of  cestui  que  trust  and  inheritor,  and  without 
supposing  any  surrender  of  the  term ;  and  therefore,  in 
general,  such  enjoyment,  though  it  may  be  of  very  long 
continuance,  may  possibly  furnish  no  ground  to  presume 
a  surrender  of  the  term.  But  where  acts  are  done  or 
omitted  by  the  owner  of  the  inheritance,  and  persons  deal- 
ing with  him  as  to  the  land,  which  ought  not  reasonbly 
to  be  done  or  omitted,  if  the  term  existed  in  the  hands  of 
a  trustee,  and  if  there  do  not  appear  to  ])c  any  thing  that 
should  prevent  a  surrender  from  having  been  made  ;  in 
such  cases  the  things  done  or  omitted  may  most  reason- 
ably be  accounted  for  by  supposing  a  surrender  of  the 
term,  and  therefore  a  surrender  may  be  presumed.  We 
think  there  are  such  things  in  the  present  case.  In  the 
year  1814,  Richard  Newman,  the  debtor,  and  then  owner 

(*498) 


OF  ASSIGNMENTS  OF  TERMS. 


671 


of  the  inheritance,  made  a  settlement  upon  his  intended 
marriage,  which  took  place  immediately.     Upon  such  an 
occasion,  the  title  and   title-deeds  of  the  husband  would 
probably  be  looked  into  by  professional  men  on  the  part 
of  the  husband,  at  least,  if  not  on  the  part  of  the  wife 
also;  and  notwithstanding  the  assertion  of   one  of   the 
learned  gentlemen  who  argued  this  case  on  the  part  of 
the  defendant,  and  by  whom  we  were  informed  that  it  is 
not  usual  on  such  occasions  to  take  any  notice  of  an  out- 
standing satisfied  term,  we  cannot  forbear  thinking  that 
such  a  term   always  ought  to  be,   and  frequently   is,  in 
some  way  noticed,  either  by  the  deed  of  settlement,  or 
by  some  separate  instrument ;    because,   if  not  noticed, 
and  the  termor  not  called  upon  to  assign  the  term  to  the 
uses  of  the  settlement,  nor  any  declaration  of  trust  made 
of  it  to  those  uses,  it  may  afterwards  be  made  an  instru- 
ment (*)of  defeating   the    settlement.     The   title-deeds 
usually  remain  with  the  husband,  and  if  he  be  driven  by  ne- 
cessity to  borrow  money,  he  may  meet  with  a  lender  who 
has  no  notice  of  the  settlement,  and  by  handing  over  his 
deeds,  and  obtaining  an  assignment  of  the  term  to  him  and 
other  conveyances,  give  to  him  a  title  that  must  prevail 
both  at  law  and  in  courts  of  equity  against  the  settlement. 
The  supposed  practice  of  taking  no  notice  of  outstanding 
terms,  on  such  an  occasion,  appears  to  have   been  insisted 
upon  before  Lord   Hardwicke,  in  the  case  of  Willoughby 
V.  Willoughby,  as  aj)plied  to  marriage   settlements  and 
purchases.     But  that  very  learned  Judge,  in   giving   his 
judgment  in  that  case,  says  he  had  inquired  of  a  very 
learned  and  eminent  conveyancer,  and  could  not  fmd  that 
there  had  been  any  such  general  rule ;  and  he  afterwards 
proceeds  to  say,  "  Where  the  assignment  has   been  ge- 
nerally in  trust  to  attend  the  inheritance,  and   the  parties 
approve  of  the  old   trustees,  they  may  safely  rely  upon  it, 
especially  in   the  case  of  a  purchase  or  mortgage,  where 

(*499) 


572 


OF  ASSIGNMENTS  OF  TER5[S. 


the  title-deeds  always  are,  or  ought  to  be,  taken  in  ;  for 
if  he  has  the  creation  and  assignment  of  the  term  in  his 
own  hands,  no  use  can  be  made  of  it  against  him."  Such 
instances  as  these  may  account  for  the  practice  in  many 
cases,  but  cannot  constitute  a  general  rule.  If  in  the 
present  case  it  had  appeared  that  the  deeds  relating  to 
the  term  were  delivered  to  the  trustees  of  the  marriage 
settlement  as  one  of  the  securities  for  the  settlement,  the 
case  would  have  stood  on  a  very  different  ground.  The 
marriage  settlement,  however,  is  not  the  only  occasion  on 
which  we  think  it  may  most  reasonably  be  supposed  that 
this  term,  if  existing,  would  have  been  brought  forward. 
It  appears  that  in  1816  the  same  Richard  Newman, 
being  then  indebted  to  his  mother,  and  desirous  of  giving 
her  security  for  the  debt,  prevailed  upon  his  wife  to  join 
with  him  in  conveying  to  her  the  interest  they  derived 
(*)under  the  settlement.  Upon  this  occasion,  an  assign- 
ment of  the  term,  or  a  delivery  of  the  deeds  relating  to  it, 
would  undoubtedly  have  been  most  important  acts  in 
favor  of  the  mortgagee,  because  they  would  have  pro- 
tected the  mortgagee  against  any  subsequent  use  of  the 
term  to  defeat  her  mortgage.  On  both  these  occasions, 
therefore,  the  term,  if  existing,  could  not  have  been 
wholly  disregarded  without  either  want  of  integrity  on 
the  part  of  Richard  Newman,  or  want  of  care  and  caution 
on  the  part  of  the  professional  men  engaged  in  those  trans- 
actions. We  think  it  more  reasonable  to  presume  a  prior 
surrender  of  the  term,  than  to  presume  such  deficiencies. 
It  certainly  might  not  unreasonably  be  left  to  a  jury  to 
consider  to  what  cause  they  would  attribute  these  omis- 
sions, and  this  was  done  at  the  trial.  It  is  true,  that  an 
assignment  of  the  term  was  taken  in  a  few  days  before  the 
trial,  for  the  alleged  benefit  of  the  legatees  of  the  mort- 
gagee, Mrs.  Newman,  on  w  hose  behalf,  we  were  informed, 
the  present  cause  was  defended.     But  this  tardy  act  can- 


OF  ASSIGNMENTS  OF  TERMS.  5-^3 

not  be  of  any  avail,  and  leads  not  to  any    presumption. 
The  assignment  was   made  by  the   administrator  of  the 
person  in  whom   the  term   had  been  vested,  and  the  ad- 
ministrator would   probably  be   ignorant  of  any  previous 
surrender  made   by  the  intestate.     The  time  for  dealing 
with  the  term  on  behalf  of  the  mortgagee  was   the  date 
of  the  mortgage.     An  actual  assignment  of  the   term  is 
more  regarded  than  its  mere  quiescent  existence.     It  will 
defeat  the  title  to  dower,  which  its  existence  only  will 
not,  according  to  the  case  of  Maundrell  and  Maundrell, 
Vesey,  jun.  vol.  vii.  page  567,  and  vol.  x.  page  246,  and 
the  cases  there  cited.     These  observations  respecting  the 
settlement  and  the  mortgage  receive  additional  force  from 
the  consideration  of  their  dates.     They  were  both  long 
subsequent  to  the  judgment,  and  they  are  the  acts  of  a 
person  materially  interested  in   protecting  the  land  from 
(*)the  judgment,  and   excluding  all   questions  on  the  sub- 
ject of  priority,  or  otherwise  ;  in  the  case  of  the  settlement, 
for  the  sake  of  his  intended  wife,  and  the  issue  that  he 
might  expect  by  her  ;  and  in   the  case  of  the  mortgage, 
for  the  sake  of  the  mortgagee,  to  whom  he  was  so  nearly 
related,  and  who  also  was   evidently  a   favored  creditor. 
And  it  cannot  be  denied,  that  an  actual  assignment  of  the 
term  would  have   been  in  many  respects  more  operative 
against  the  judgment  than  its  mere  existence.     In  the  case 
of  the  mortgage,  it  would  have  put  an  end  to  all  question 
upon  the  statute  of  frauds,  by  making  the  termor  specifi- 
cally a  trustee  for  the  mortgagee  before  execution  issued, 
according  to  the  case  of  Hunt  v.  Coles,  1  Com.  Rep.  226. 
For  these  reasons  we   think   the  verdict  ought  not  to  be 
disturbed,  and   the   rule  must  therefore   be  discharged." 
It  will  at  once  be  observed,  that  this  is  a  stronger  case 
in  favor  of  the  existence  of  the  term  than  that  which  we 
have  been  considering.    There  was  no  circumstance  which 
pointedly  called  for  an  assignment  of  the  term  before  the 

(*501) 


574  ^^  ASSIGNMENTS  OF  TERMS. 

period  when  one  was  made  ;  for  an  assignment  is  never 
made  by  reason  of  descents,  or  of  a  marriage  settlement. 
Previously  to  the  sale,  therefore,  the  presumption  could 
not  on  any  reasonable  ground  be  let  in  ;  and  if  not,  such 
a  presumption  ought  not  to  have  been  made  at  all.  There 
could  be  no  doubt  which  ought  to  be  preferred,  the  pur- 
chaser, or  the  judgment-creditor.  The  latter  obtained  his 
judgment  on  a  warrant  of  attorney,  and  slept  on  his  secu- 
rity for  ten  years,  and  never  had  a  specific  lien  on  the 
estate,  but  a  general  security  riding  over  the  whole  of  the 
seller's  property  ;  whereas  the  purchaser  not  only  bought 
the  estate  itself  without  notice  of  the  incumbrance,  but 
had  possession  of  all  the  deeds  relating  to  the  term,  to 
the  possession  of  which  he  was  entitled  as  a  purchaser. 
That  circumstance  alone,  even  as  between  two  mort- 
gagees of  the  estate  itself,  both  equally  innocent,  would 
(*)give  the  better  right  to  the  one  holding  the  deeds(.9). 
As  between  a  purchaser  of  the  estate  and  a  mere  judgment- 
creditor,  the  rule  applies  with  irresistible  force.  The  pur- 
chaser, therefore,  clearly  had  the  better  equity;  and  the 
presumption  of  the  surrender,  without  any  evidence  upon 
which  to  ground  it,  let  in  the  judgment-creditor  on  the 
estate  in  the  hands  of  the  purchaser,  although,  according 
to  equity  and  good  conscience,  the  creditor  had  no  title 
to  rank  as  such.  The  presumption  too  let  in  tlie  judgment- 
creditor  on  the  estates  provided  for  the  wife  and  children  by 
the  marriage  settlement ;  for  the  term  could  not  be  presum- 
ed to  be  surrendered  against  the  purchaser,  and  in  exist- 
ence for  the  benefit  of  the  wife  and  children.  And  yet 
counsel  in  very  great  practice  never  knew  an  instance  of 
an  attendant  term  being  re-assigned  on  a  marriage,  and 
have  suffered  hundreds  of  settlements  to  be  executed  with- 
out requiring  such  an  assignment ;  so  that  the  provisions 
made  for  very  many  families  may  be  deeply  incumbered 

(s)  Stanhope  v.  Earl  Veiney,  2  Eden,  81. 
(*502) 


OF  ASSIGNMENTS  OF  TERMS, 


575 


if  this  new  rule  is  to  be  followed.  It  will  not  be  con- 
tended that  the  subsequent  conduct  of  the  purchaser  of 
the  life-estate  ought  to  affect  the  wife  and  children  of  the 
seller ;  and  yet  it  is  undeniable  that  the  circumstance  of 
the  purchaser  not  taking  an  assignment  of  the  term  was 
relied  upon  as  a  strong  ground  in  favor  of  the  presump- 
tion. The  assignment  was  made  by  Denman's  adminis- 
trator, who  was  regularly  such  as  next  of  kin,  and  not 
a  mere  stranger,  procuring  a  limited  administration  de 
bonis  no7i,  for  the  purpose  of  assigning  the  term. 

The  above  decision  powerfully  attracted  the  attention 
of  the  Profession.  An  ejectment  was  afterwards  brought 
by  the  Newmans  and  Denman,  against  Putland,  who 
recovered  in  the  former  ejectment,  to  recover  back  the 
estate(i).  It  came  on  at  the  assizes  for  Sussex,  before 
(*)Mr.  Baron  Garrow.  Upon  this  ejectment  the  lessors 
of  the  plaintiff  proved  a  mortgage  in  fee  of  the  estate  to 
Thomas  Mark  wick,  in  August  1814,  by  Richard  New- 
man the  son,  who  afterwards  made  the  marriage  settle- 
ment. By  this  mortgage,  which  it  had  not  been  con- 
sidered necessary  to  produce  upon  the  former  ejectment, 
all  deeds  were  granted  ;  and  it  contained  a  general  decla- 
ration of  the  trust  of  all  terms  of  years  for  the  mortgagee. 
The  assignment  of  the  term  from  Carter  of  the  7th  of 
October  1779,  was  delivered  over  to  Markwick,  and  was 
contained  in  a  schedule  of  title-deeds  made  at  the  time 
of  the  mortgage,  and  signed  by  Markwick.  By  a  deed 
dated  the  9th  of  September  1819,  Newman,  the  trustee 
of  the  one  thousand  years  term,  declared  that  he  would 
stand  possessed  of  it  in  trust  for  Markwick,  and  to  secure 
the  mortgage-money  due  to  him.  It  was  argued  on  the 
part  of  the  defendant  that  it  would  be  inconvenient  that 
one  Judge  should  direct  a  jury  to  presume  a  surrender  of 
the  term,  and  another  direct  the  contrary.     In  the  mort- 

(0  Doer.  Putland.     See  Bartlett  v.  Downes,  3  Barn.  &  Cress.  616. 

(*503) 


576 


OF  ASSIGNMENTS  OF  TERMS. 


gage  to  Markwick  there  was  no  notice  of  any  particular 
term,  and  no  assignment  was  taken  of  the  one  thousand 
years  term  ;  Newman  might  therefore  have  parted  with 
the  term  upon  a  new  loan.  The  assignment  in  March 
1819  was  not  at  all  for  the  benefit  of  Markwick;  there 
was  no  acting  upon  the  term  from  1779  till  1819.  No 
notice  was  taken  of  it  in  the  marriage  settlement.  The 
learned  Judge  said,  in  charging  the  jury,  that  the  facts 
were  very  different  now  to  those  proved  on  the  former 
trial ;  and  his  present  view  was  sanctioned  by  the  sug- 
gestion in  that  very  case.  Here  the  deeds  were  handed 
over  to  the  mortgagee  before  the  settlement  and  convey- 
ance, which  accounts  for  the  term  not  having  been  men- 
tioned in  those  securities.  The  circumstance  of  the  deed 
having  been  scheduled  and  handed  over  to  Markwick 
shows  that  the  term  had  not  been  surrendered.  The 
(*)learned  Judge  directed  the  jury  to  find  a  verdict  for  the 
plaintiff.  The  jury  found  that  the  term  was  subsisting, 
and  reserved  any  question  of  law. 

In  Trinity  term  1820  the  defendant  moved  for  a  new 
trial ;  the  learned  Judge  who  tried  the  cause  re-stated 
the  point,  upon  which  he  directed  the  jury,  and  observed 
that  the  case  had  excited  a  great  deal  of  attentiouj  and 
had  occasioned  the  observations  which  have  already  been 
submitted  to  the  learned  reader(M).  The  Chief  Baron 
said,  that  he  should  like  to  have  the  point  argued  on  the 
presumption  of  surrender.  From  his  habits  in  West- 
minster Hall,  his  Lordship  added,  he  had  travelled  more 
than  most  men  through  the  law  relating  to  this  case,  and 
he  did  not  think  the  doctrine  of  presumption  a  correct 
doctrine.  It  is  a  very  serious  point;  and  of  late  the 
doctrine  has  been  carried  to  a  very  frightful  extent.  Mr. 
Baron  Graham  observed,  that  he  had  never  suffered  these 

(m)  They  appeared  at  the  time  in  the  shape  of  a  letter  from  the  au- 
thor to  Mr.  Butler. 
(*604) 


OF  ASSIGNMENTS  OF  TERMS. 


577 


presumptions,  exce{)t  in  cases  very  strongly  warranted, 
and  where  nothing  was  shown  to  the  contrary.  The 
Cliief  Baron  added,  that  he  never  desired  a  jury  to  pre- 
sume where  he  did  not  believe  himself.  The  Court  gave 
the  defendant  leave  to  argue  the  point  upon  the  statute  of 
frauds,  upon  a  case  to  be  stated(a:).  The  point,  there- 
fore, as  to  the  surrender  of  the  term,  was  put  at  rest. 
The  case  upon  the  other  point  was  prepared,  but  the  suit 
has  since  been  compromised,  highly  to  the  advantage  of 
the  Newmans. 

The  attention  of  Lord  Chancellor  Eldon  was  quickly 
drawn  to  the  doctrine  of  the  Court  of  Kin2:'s  Bench.  In 
(*)the  Marquis  of  Townsend  v.  Bishop  of  Norwich,  on 
the  27th  January  1 820,  his  Lordship  observed  : — 

The  legal  interest  in  the  advow^son  is  unquestionably 
in  Mr.  Ainge,  for  a  term  of  years,  which,  as  I  understand, 
has  been  expressly  assigned  to  attend  the  inheritance. 
I  do  not  inquire  whether  there  may  have  been  interme- 
diate transactions  since  the  creation  of  the  term,  which 
might  induce  some  people  to  think  a  surrender  of  it 
should  be  presumed,  further  than  to  remark,  that  having 
in  days,  which  perhaps  may  be  thought  days  of  yore, 
passed  about  two  years,  by  no  means  unprofitably,  in  the 
office  of  Mr.  Duane,  and  during  which  I  had  frequent 
opportunities  of  knowing  the  opinions  entertained  by 
Mr.  Booth,  Mr.  Fearne,  and  other  eminent  conveyancers 
of  that  day,  I  well  know  that  they  were  in  the  habit  of 
proceeding  on  notions  relative  to  satisfied  terms,  which, 
notwithstanding  some  modern  decisions,  I  would  not 
advise  conveyancers  to  depart  from(?/). 

(x)  It  appears,  therefore,  that  the  presumption  was  made  on  the  first 
ejectment,  against  the  real  facts  and  merits  of  the  case  as  they  ultimate- 
ly appeared.  This  powerfully  shows  that  such  a  presumption  ought 
not  to  be  made  on  light  grounds. 

{ij)  From  Mr.  Wilson's  note. 

VOL.   I.  73  ^,  (*505) 


r«g  OF  ASSIGNMENTS  OF  TERMS. 

Upon  another  occasion  his  Lordship  observed:  For- 
merly assignments  were  not  considered  necessary,  because 
the  old  trustee  would  be  a  trustee  for  you,  although  you 

mio"ht  not  like  him.     It  was  never  considered  that  the 

o 

presumption  of  a  surrender  was  to  be  made  because 
some  particular  act  had  not  Ijeen  done.  Lord  Kenyon 
thought  that  some  act  must  be  done  to  presume  a  sur- 
render ;  but  now  it  is  said,  that  if  no  act  is  done,  you 
may  presume  a  surrender  :  I  cannot  go  the  length  which 
I  see  some  late  cases  go,  where  there  is  no  proviso. 
They  have  raised  the  presumption  from  a  transaction 
where  they  say  the  term  would  have  been  assigned  if 
not  surrendered.  I  say  that  the  circumstance  does  not 
let  in  that  presumption ;  because  the  purchaser  must 
know  that  the  term  will  be  held  in  trust  for  him,  and  he 
(*)may  leave  it  where  it  is,  to  save  the  expense  of  taking 
out  administration(2). 

His  Lordship  again  took  occasion  to  observe,  in  Hayes 
V.  Bailey,  15th  March  1820:  There  is  now  a  modern 
doctrine  of  presuming  surrenders.  When  I  first  came 
here,  every  old  lawyer  thought  assignments  of  terms  un- 
necessary ;  and  as  to  the  principle,  that  the  term  would 
be  presumed  to  be  surrendered  if  it  had  not  been  assigned 
on  marriages,  &c.  ;  it  was  then  thought  that  there  was  no 
occasion  to  assign,  for  if  it  had  once  been  assigned  to 
attend,  the  assignee  will  be  a  trustee  for  you.  They  then 
never  thought  it  necessary  to  have  it  assigned  on  such 
occasions.  I  remember  Mr.  Lloyd  used  to  say,  that  an 
old  term  was  worth  two  inheritances.  You  sec  Lord 
Kenyon  got  as  far  as  this  before  he  would  presume  a  sur- 
render ;  you  must  show  that  there  had  been  some  dealing 
with  it ;  but  it  seems  to  be   the  law  now,   that  if  you 


(a)  From  the  Author's  note.  .-^ 

(*606)  I 


OF  ASSIGNMENTS  OF  TERMS.  579 

show  that  there  has  been  no  dealing  with  it  you  are  to 
presume  it  surreudered(a). 

In  the  late  case  in  the  Exchequer,  of  Deardon  v.  Lord 
Byron,  the  Chief  Baron  again  expressed  his  disapproba- 
tion of  this  doctrine  of  presumption(6). 

Upon  the  appeal  in  the  House  of  Lords,  in  Cholmondley 
IK  Clinton(c),  the  Lord  Chancellor,  with  a  reference  to 
a  deed  of  the  year  1704,  by  which  a  term  of  two  hundred 
years  was  created,  with  a  proviso  for  the  cesser  of  the 
term,  but  which,  as  the  circumstances  upon  which  that 
term  was  to  determine  had  not  taken  effect,  remained  a 
subsisting  term,  and  was  assigned  in  1811,  observed  : — 
*'  I  would  wish  to  call  your  Lordships'  most  particular 
attention  to  this  part  of  the  case,  because,  unless  I  now 
(*)misunderstand,  and  unless  I  have  misunderstood  for  a 
good  many  years,  in  which  I  have  been  laboriously,  in 
different  situations,  discharging  the  duties  which  belong 
to  the  Profession  of  which  I  have  the  honor  to  be  a 
member,  the  doctrine  upon  this  subject,  there  arise  out 
of  the  circumstances  vidiich  I  am  about  to  mention  many 
important  observations  bearing  upon  this  case,  with  a 
great  degree  of  importance,  because  bearing,  unless  I 
misunderstand  the  case  very  much,  upon  the  titles  to 
property  in  this  kingdom.  My  Lords,  tliis  deed  of  1704 
provides,  as  I  before  stated,  for  the  cesser  of  the  term, 
that  is,  of  the  interest  which  the  term  creates.  Let  me 
suppose  for  a  moment,  that  there  had  been  no  such  de- 
claration with  respect  to  the  cesser  of  the  term,  or  what 
comes  to  the  same  thing,  that  the  state  of  things  has  not 
yet  arisen  in  which  the  term  is  to  cease,  that  term  created 
in  1704,  would,  according  to  all  the  ideas  that  I  ever  had 
of  the  law  of  this  country  (I  am  speaking  now  of  what 

(o)  From  Mr.  Jacob's  note. 
(6)   MS. 

(c)  MS.  Doe  V.  Cooke,  6  Bing,    174  ;  3  Moo.  &  Payne,  411,  S.  C. 

(*607) 


580 


OF  ASSIGNMENTS  OF  TERMS. 


would  have  been  done  tvventj-five  years  ago,  instead  of 
speaking  particularly  of  the  present  time,)  be  considered 
as  a  term  which,  whether  the  instrument  that  created  it 
or  not  did  so  declare,  would  be  attendant  upon  the  inhe- 
ritance when  the  ends  and  trusts  of  it  were  satisfied  ;  that 
is,  it  would  be  considered  as  a  term,  where  neither  pre- 
sumption that  it  was  satisfied,  nor  presumption  that  it  was 
surrendered,  would  at  that  period  have  been  entertained, 
unless  there  had  been  some  dealing  with  the  term  which 
would  authorize  a  presumption  either  of  the  one  nature 
or  of  the  other,  but  it  would  be  taken  to  be,  what,  in  the 
language  of  those  who  are  now  no  more,  I  have  often 
heard  it  stated  to  be,  the  best  part  of  a  title,  namely,  that 
old  term  that  could  be  got  in  to  protect  the  inheritance. 
And  I  conceive  that  such  a  term,  whether  there  was  any 
intention  that  it  should  or  should  not  attend  the  inheri- 
tance, would  be  a  term  held  in  trust  to  attend  the  inheri- 
tance, (*)protecting  the  equities  of  all  who  had  equities 
during  the  existence  of  that  term  ;  all  the  estates,  to  a  cer- 
tain extent,  that  is,  during  the  duration  of  the  term,  would 
be  equitable  estates,  but  protecting  them  all  according  to 
the  due  course,  and  order,  and  priority  in  which  they 
existed,  and  according  to  their  equities." 

In  giving  judgment  in  the  same  case  upon  the  hearing 
at  the  Rolls,  vSir  Thomas  Plumer  appeared  also  to  be  of 
opinion  against  the  presumption  in  such  cases(d). 

Since  the  decision  in  Doe  v.  Hilder  the  point  has  been 
repeatedly  debated  before  the  different  Masters  in  Chan- 
cery, upon  objections  taken  by  sellers  to  procure  repre- 
sentations to  terms  of  years,  which,  they  insisted,  ought 
to  be  presumed  to  have  been  surrendered  ;  but  the  gene- 
ral and  prevailing  opinion  has  been  that  that  doctrine 
cannot  be  maintained;  and  the  Masters  have  acted  upon 
that  principle. 

(f/.)   2  .Jnc.  &  "VVnlk.  158. 

(-50S ) 


OF  ASSIGNMENTS  OF  TERMS. 


581 


And  finally,  in  Aspinall  v.  Kenipson,  upon  a  motion 
before  the  Lord  Chancellor  for  a  new  trial,  in  which  some 
gentleman  at  the  common-law  bar  cited  Doe  v.  Hilder, 
his  Lordship  observed,  "It  is  not  necessary  to  consider 
much  the  doctrine  of  presumption  with  reference  to  the 
present  case,  but  the  case  of  Doe  v.  Hilder  having  been 
alluded  to,  and  having  paid  considerable  attention  to  it, 
I  have  no  hesitation  in  declaring  that  I  would  not  have 
directed  a  jury  to  presume  a  surrender  of  the  term  in  that 
case  ;  and  for  the  safety  of  the  titles  to  the  landed  estates 
in  this  country,  I  think  it  right  to  declare  that  I  do  not 
concur  in  the  doctrine  laid  down  in  that  case(e)." 

We  may,  therefore,  be  justified  in  considering  the  law 
to  stand  as  it  did  before  the  decision  in  Doe  v.  Hilder ; 
and  conveyancers  of  course  will  follow  the  advice  of  the 
(*)Lord  Chancellor,  and  not  depart  from  the  practice 
which  they  have  hitherto  followed. 

In  the  recent  case  of  Doe  v.  Plowman(y),  where 
the  term  had  been  assigned  to  attend  in  1789  upon  a 
purchase,  and  in  1808  the  purchaser  settled  the  pro- 
perty upon  her  marriage,  and  afterwards  devised  the  pro- 
perty under  a  power  in  the  settlement,  but  neither  in  the 
marriage  settlement  nor  of  course  in  the  will  was  any 
mention  made  of  the  term  ;  it  was  held  upon  an  ejectment 
by  her  heir-at-law  that  a  surrender  of  the  term  could  not 
be  presumed.  Lord  Tenterden  observed  that  the  doctrine 
laid  down  in  the  cases  above  discussed  he  believed  had 
been  much  questioned,  and  he  inquired  whether  such  a 
term  as  this  was  usually  noticed  in  a  marriage  settle- 
ment, and  upon  receiving  an  answer  in  the  negative,  ob- 
served, "  if  that  be  so,  there  is  no  ground  for  presuming 
that  this  term  which  was  assigned  to  attend  the  inhe- 
ritance was  ever  surrendered." 

(e)  L.  I.  Hall,  5  Dec.  1821,  iVoni  Mr.  Walker's  note. 
(/)  2  Barn.  &  Adolph.  573. 

(.*509; 


QQ2  *^^  ASSIGNMENTS  OF  TERMS. 

The  Vice-Chancellor,  Sir  John  Leach,  in'tvvolate  cases 
upon  specific  performance,  as  between  a  seller  and  a  pur- 
chaser, presumed  a  term  to  be  surrendered  which  had  not 
been  assigned  to  attend  the  inheritance,  and  which  for 
a  long  period  had  not  been  disturbed.  The  first  case  was 
Emery  v.  Growcock(g).  The  other  case  was  ex  parte 
Holman(A.),  where  it  appeared  by  the  abstract  of  the  title 
delivered  to  the  purchaser,  that,  by  indenture  bearing  date 
the  24th  of  December  1735,  and  made  between  Thomas 
Baker  of  the  one  part,  and  John  Marsh  of  the  other  part, 
the  said  Thomas  Baker  did  grant  and  demise,  amongst 
other  hereditaments,  the  messuage  and  premises  in  ques- 
tion unto  the  said  John  Marsh,  his  executors,  adminis- 
trators and  assigns,  for  the  term  of  five  hundred  years, 
(*)subject  to  redemption  on  payment  by  the  said  Thomas 
Baker,  his  heirs,  executors,  administrators  and  assigns, 
unto  the  said  John  Marsh,  his  executors,  administrators  or 
assigns,  of  the  sum  of  205/.  on  a  certain  day  therein  men- 
tioned, that  the  said  sum  was  not  paid  accordingly,  but 
that  the  same  with  all  interest  was  paid  to  the  executor 
of  the  said  John  Marsh  on  the  6th  day  of  October  1750, 
as  appeared  by  a  receipt  indorsed  on  the  said  indenture, 
but  no  assignment  or  surrender  of  the  said  premises  com- 
prised in  the  said  term  was  ever  made  and  executed,  and 
therefore  the  purchaser  insisted  that  the  sellers  should  at 
their  own  expense  discover  the  personal  representatives 
of  the  said  John  Marsh,  and  procure  an  assignment  from 
them  of  the  said  term  to  a  trustee  for  the  purchaser  to 
attend  the  inheritance. 

The  Master  to  whom  the  tijtle  was  referred  was  of 
opinion  that  the  term  of  five  hundred  years  was  outstand- 
ing, and  was  then  vested   in  the   personal  representative 

ig)   Mar.  1821,  MS.  6  Madd.  54. 

(A)  24  July,  1821,  MS.  ;  and  in  Townsend  v.  Champernown,  l-Yo. 
&  Jerv.  538. 

(*610) 


OP  ASSIGNMENTS  OF  TERMS.  5g3 

or  representatives  of  John  Marsh  the  termor,  but  it  did 
not  appear  by  any  evidence  before  him  who  was  or  were 
such  personal  representative  or  representatives  ;  and  the 
Master  was  of  opinion  that  it  was  expedient  and  neces- 
sary that  the  said  term  should  be  assigned  to  a  trustee  for 
the  purchaser,  and  that  the  expense  of  deducing  the  title 
thereto,  and  of  procuring  the  said  term  to  be  so  assigned, 
should  be  borne  and  paid  by  the  vendors. 

In  an  intermediate  deed,  dated  in  July  1749,  the  term 
was  noticed,  but  in  no  other  deed  was  it  mentioned  ;  and 
there  were  three  conveyances  of  the  fee  upon  sales,  one 
in  1784,  another  in  1791,  and  the  other  in  1792,  The 
Vice-Chancellor  was  of  opinion  that  a  surrender  of  the 
term  must  be  presumed. 


V.  The  importance  of  obtaining  an  assignment  of  all 
outstanding  terms  cannot  be  too  strongly  impressed  on 
(*)purchasers.  If  a  purchaser  has  no  notice,  and  happens 
to  take  a  defective  conveyance  of  the  inheritance,  defec- 
tive either  by  reason  of  some  prior  conveyance,  or  of  some 
prior  charge  or  incumbrance,  and  if  he  also  takes  an  as- 
signment of  the  term  to  a  trustee  for  him,  or  to  himself, 
where  he  takes  the  conveyance  of  the  inheritance  to  his 
trustee,  in  both  these  cases  he  shall  have  the  benefit  of  the 
term  to  protect  him  ;  that  is,  he  may  make  use  of  the 
legal  estate  of  the  term  to  defend  his  possession,  or,  if  he 
has  lost  the  possession,  to  recover  it  at  common  law,  not- 
withstanding that  his  adversary  may  at  law  have  the 
strict  title  to  the  inheritance(*)(246). 

Lord  Hardvvicke  was  of  opinion  that  the  protection 
arising  from  a  term  of  years,  assigned  to  a  trustee  for  a 
purchaser,  should   extend  generally  to  all  estates,  charges 

(t)  Willoughby  v.  Willoughby,  1  Term  Rep,  763,  per  Lord  Hard- 
wicke  ;  and  see  For.  69. 


(246)  See  Williatnsonv.  Gordon\9  Exrs.  6  Munf.  257. 

(*611) 


5g^  OF  ASSIGNMENTS  OF  TERMS.  ^ 

and  incumbrances,  created  intermediate  between  the 
raising  of  the  term  and  the  purchase^").  And  this  doc- 
trine, unqualified  as  it  is,  seems  correct.  For  as  the  term 
will  prevail  over  a  strict  title  to  the  inheritance,  it  will  of 
course  be  a  protection  against  judgments,  mortgages,  and 
all  other  incumbrances  and  estates  less  than  a  fee ;  and  it 
may,  in  like  manner,  be  used  as  a  shield  against  an  act(/c), 
or  commission(/)  of  bankruptcy. 

In  the  late  case  of  the  King  v.  Smith(w?),  however,  the 
Court  of  Exchequer  held  that  a  term  of  years,  which  had 
been  assigned  to  a  trustee  for  the  crown  debtor(?2),  would 
not  protect  a  purchaser  against  crown  debts,  although  he 
purchased  bona  fide  and  without  notice(I).  This  point 
(^)had  previously  been  considered  by  most  of  the  leading 
characters  in  the  Profession,  some  of  whom  have  since 
filled  the  highest  judicial  situations  5  and  the  general 
opinion  of  the  Profession  appears  to  have  been,  that  a 
purchaser  might  protect  himself  against  crown  debts,  by 
a  legal  term  of  years  created  previously  to  the  right  of  the 
crown  attaching  on  the  estates,  where  he  had  not  notice, 

( j)  See  1  Term  Rep.  768. 
{k)  Collett  V.  De  Gols,  For.  65. 

(Z)  Hithcox?).  Sedgwick,  2  Vern.  156,  reversed  '\x\  Dom.  Proc.  See 
post.  c.  17,  this  point  considered. 

(m)  Excheq.  2d  March,  1804,  MS.  Appendix,  No.  17. 
(n)  See  13  Price,  656. 

(I)  It  has  been  determined  that  in  the  case  of  a  purchase  for  a  vaki- 
able  consideration,  without  notice  and  without  fraud  or  covin,  from  a 
simple  contract  debtor  of  the  Uing,  the  lands  are  not  bound  by  such 
simple  contract  debt.  The  King  v.  Smith,  1  Wight  34.  In  that  case, 
the  general  words  in  the  statute  of  13  Elizabeth,  c.  4,  received  a  limited 
and  proper  construction.  In  Wild  v.  Fort,  4  Taunt.  334,  in  which  it 
was  not  necessary  to  decide  the  point,  the  rule  was  laid  down  with 
apparently  too  much  latitude,  that  every  person  who  has  received 
money  belonging  to  the  crown,  every  accountant  of  the  crown  for 
money  of  the  crown  received,  falls  within  the  act.  See  Casberd  v. 
Ward,  6  Price,  411. 

(*512) 


OF  ASSIGNMENTS  OF  TERMS. 


585 


express  or  implied,  of  the  debt  due  to  the  crown,  or  of  the 
vendor  being  an  accountant  to   the  crown.     They  relied 
on  the  analogy   between   this  case   and   the  genera]   rule 
respecting  judgments   and   recognizances,  against   which 
a  purchaser  may  protect   himself  by  an  outstanding  legal 
estate,  unless  he   had   notice  of  them  previously  to  com- 
pleting his  purchase.     The  late   Lord  Kenyon,  in  an  opi- 
nion on  this  point,  treated   the  right  of  the  crown  as  not 
superior  to  that  of  a  subject.      Indeed,   the   point  may 
fairly  be  said  to  have  received  what  was  tantamount  to  a 
judicial   decision,   previously  to  the  determination  of  the 
Court  of  Exchequer.     When  Mansfield,  Chief  Justice  of 
the  Common   Pleas,   was    Solicitor-general,  he  gave  an 
opinion   in  favor  of    the    right  of  the   crown   to  extend 
lands  in  the   hands  of  a  mortgagee,  although   the    legal 
estate  had  never  vested  in   the  mortgagor,   but  had  been 
conveyed  to  the  mortgagee  by  the  trustees  in  whom  it  had 
been  vested   in   trust  for   the  mortgagor.     The  question 
underwent  great  consideration,  and  it  was  discovered  that 
there  was  an  old  term  of  years,  to  the  benefit  of  which 
the  mortgagee  was  clearly  entitled  in  preference  to  any 
(*)other  person,  although  it  was  not  actually  assigned  to  a 
trustee   for  him.     The  case   was  again  laid  before  the 
Solicitor-general,  who  then  wrote  an  opinion  that  the  title 
of  the  mortgagee  would  be  preferred  to  that  of  the  crown. 
He  stated,  that  upon  a  short  inquiry  before  he  wrote   his 
former   opinion,  it  had  been    represented   to    him,   that 
estates  held  in  trust  for  a  debtor  of  the  crown  were  usu- 
ally seized  under  extents,  and  \^'ere  considered  as  bound 
by  his  debts  in  the   same   manner  as  those  of  which  he 
was  legally   seized.     He    had    since    desired  a  further 
search  to  be  made,  and  was  then  informed  that  no  instan- 
ces were  to  be  found  in  which  a  trust-estate  of  such  debt- 
or fairly  parted  with   to  a  purchaser  without  notice   had 
been  deemed  to  be  liable  to  the  debts  of  the  crown,  and 

VOL.   1.  74  (*513) 


ggg  OF  ASSIGNMENTS  OF  TERMS. 

in  consequence  of  this  information  his  opinion  then  in- 
clined in  favor  of  the  mortgagee.  And  he  gave  a  similar 
opinion  on  this  point  in  the  year  1801,  so  that  he  had  not 
seen  any  reason  to  alter  his  opinion  after  a  lapse  of  nearly 
twenty  years. 

The  principal  grounds  of  the  determination  in  the  King 
V.  Smith  vv^ere  three  : —  1st,  that  the  lands  of  a  debtor  to 
the  crown  might  be  extended  into  whatever  hands  they 
might  have  been  aliened,  subsequently  to  their  becoming 
liable  to  the  crown ;  2dly,  that  the  estates  of  which  the 
debtor  was  cestui  que  trust  might  be  extended  ;  and  3dly, 
the  decision  in  the  case  of  the  Attorney-general  v.  Sands(o). 
The  two  first  positions  of  the  Court  may  be  admitted  to 
be  law,  without,  as  it  should  seem,  at  the  same  time  ad- 
mitting that  a  purchaser  cannot  protect  himself  against 
the  crown  by  an  outstanding  legal  estate.  Indeed  it  was 
the  third  ground  upon  which  the  Court  principally  relied, 
and  built  their  decree. 

The  determination  in  the  case  of  the  Attorney-general 
(*)v.  Sands  was,  that  the  trust  of  a  term  attendant  on  the 
inheritance  was  not  forfeited  by  the  felony  of  the  cestui 
que  trust,  because  it  was  no  more  than  an  accessary  to  the 
inheritance,  which  was  not  forfeited.  In  the  King  v. 
Smith,  the  Court  of  Exchequer  thought  that  the  converse 
of  this  case  must  be  taken  to  be  true.  The  term  was  not 
forfeited,  because  the  inheritance  was  not  forfeited ;  but 
if  the  inheritance  had  been  forfeited,  the  term  must  have 
been  forfeited.  The  case  of  the  Attorney-general  v. 
Sands  was  decided  in  a  court  of  equity,  and  appears 
wholly  to  depend  upon  the  rules  of  equity  as  to  attendant 
terms  ;  and  on  the  like  principle,  it  may  be  thought  that 
the  same  Judges  would  have  denied  relief  against  a  pur- 
chaser in  a  case  similar  to  that  of  the  King  v.  Smith ; 
and  that  no  such  relief  could  at  this  day  be  granted.     If 

(o)  Hard.  2  Freem.  3  Cha.  Rep. 

(*514) 


OF  ASSIGNMENTS  OF  TERMS. 


587 


any  remedy,  therefore,  lies  against  the  purchaser,  it  must 
be  at  law.  Now  at  law  the  term  in  the  trustee  is  a  term 
in  gross.  A  legal  title,  prior  to  the  right  of  the  crown, 
must  prevail  at  law  ;  and  the  Court  ought  not  to  advert 
to  the  trust,  only  for  the  purpose  of  taking  the  protection 
of  the  term  from  the  bona  fide  object  of  the  trust,  for 
even  the  arts  of  the  law  in  introducing  collateral  warran- 
ties, discontinuances,  and  non-claims  to  protect  the  j^os- 
session  and  strengthen  the  rights  of  purchasers,  have  been 
the  subject  of  commendation  from  the  great  Lord  Not- 
tingham ;  and  it  is  admitted  that  if  the  term  be  in  gross, 
an  assignment  before  any  actual  extent  will  stand  good 
against  the  king's  debt(/?).  Lord  Hardwicke's  decision 
in  Willoughby  v.  Willoughby  is  an  elaborate  perfor- 
mance, and  was  certainly  pronounced  after  great  con- 
sideration. Every  point  was  adverted  to,  and  yet  his 
Lordship  lays  the  rule  down  generally,  that  a  purchaser 
may  protect  himself  against  all  mesne  incumbrances  by  a 
(*) prior  legal  term,  and  does  not  except  the  case  of  the 
crown.  And  in  pronouncing  judgment  in  the  Attorney- 
general  V.  Sands,  the  Chief  Baron  observed,  that  the  term 
was  only  kept  on  foot  to  avoid  incumbrances  which  might 
affect  the  inheritance ;  and  yet,  although  he  was  dis- 
cussing the  rights  of  the  crown,  he  did  not  seem  to  con- 
sider that  the  term  would  not  prevail  over  crown  debts. 
It  is  not  denied,  that  in  general  where  a  term  is  attendant 
on  the  inheritance,  if  the  king  extends  the  inheritance  he 
shall  have  a  right  to  the  term(9')  ;  but  the  question  here 
turns  upon  what,  it  is  conceived,  ought  to  form  an  excep- 
tion to  that  rule,  viz.  a  purchase  by  the  person  claiming 
the  benefit  of  the  term  bona  fide,  and  without  notice  of 

the  claim  of  the  crown. 

It  remains   only  to   observe,  that  in  this  commercial 

(p)  2  Vern.  390. 

(q)  See  the  2d  icsolution  in  Nicholls  v.  How,    2  V^crn.  389. 

(*515) 


coo  OF  ASSIGNMENTS  OF  TERMS. 

country,  any  decision  which  tends  to  clog  the  free  aliena- 
tion of  property,  and  to  render  the  titles  of  fair  purchasers 
insecure,  cannot  but  be  productive  of  the  most  serious 
consequences,  and  well  demands  the  interference  of  the 
legislature,  if  the  law  is  too  well  settled  to  be  over-ruled. 

In  a  still  later  case(r),  in  which  the  case  of  King  v. 
Smith  appears  to  have  been  forgotten,  where  a  man  having 
agreed  before  marriage  to  purchase  and  settle  estates, 
entered  into  bonds  to  the  crown,  and  then  made  a  pur- 
chase, and  afterwards  settled  the  estate  according  to  the 
articles,  it  was  held  that  a  mortgage  term  assigned  to  at- 
tend upon  the  purchase  did  not  protect  the  inheritance 
against  the  crown  debt,  because  the  settlement  was  volun- 
tary. There  was  no  covenant  in  the  articles  which  spe- 
cifically bound  the  lands.  The  assignment  of  the  term 
therefore  could  not,  it  was  held,  defeat  the  right  of  the 
crown. 

(*)But  where  the  term  has  never  been  assigned  to  attend 
for  the  crown  debtor,  it  will  not  be  affected  by  the  claim 
of  the  crown  in  the  hands  of  a  trustee  for  a  bonajide  pur- 
chaser. Therefore,  where  upon  a  purchase  a  term  of  1,000 
years  was  limited  to  the  seller  to  secure  a  portion  of  the 
purchase-money  and  subject  to  the  term,  the  fee  was 
limited  to  the  purchaser ;  the  mortgage  wns  not  paid  off 
by  the  purchaser,  but  he  sold  the  property,  and  the 
second  purchaser  paid  off  the  mortgage,  and  took  an  as- 
signment of  the  term  to  a  trustee  for  himself  to  attend 
the  inheritance  :  it  was  held  that  the  term  was  not  bound 
by  the  crown  debt  of  the  first  purchaser(5). 

Mr.  Butler  justly  observes,  that  "  a  term  should  never  be 
relied  on,  unless  proof  can  be  obtained  easily,  and  at  a 
small  expense,  of  the  instruments  and  acts  in  law,  which 

(r)  Rex  V.  St.  John,  2  Price,  317.  See  Rexv.  HoUier,  2  Price,  394. 

(*)  Re.\  V.  Lamb,  13  Price,  6-i9 ;  M'CIel.  402,  S.  C. 

(*ol6) 


I 


i 


OF  ASSIGNMENTS  OF  TERMS. 


589 


must  be  proved  to  establish  the  creation  and  deduction  of 
the  term.  It  should  also  be  ascertained,  that  its  situation 
is  such  as  enables  the  party  entitled  to  it,  to  avail  himself 
of  it  in  ejectment(^)."  And  to  enable  the  purchaser  to 
avail  himself  of  the  term,  it  is  indispensably  necessary  that 
he  should  not  have  notice,  either  express  or  implied,  of  the 
incumbrance  or  title  against  which  he  is  desirous  of  using 
the  term  as  a  protection.  Mr.  Powell,  indeed,  although 
he  admits  that  terms,  the  purposes  of  whose  creation  are 
answered,  and  which  have  been  expressly  assigned  to  at- 
tend the  inheritance,  will  not  be  any  protection  to  a  pur- 
chaser of  the  inheritance  who  had  notice  of  any  judgments, 
&,c.  yet  contends,  that  where  a  purchaser  of  the  inheritance 
obtains  a  term  in  gross,  the  purposes  of  whose  creation 
were  not  answered  at  the  time  of  the  purchase(I),  or  a 
(*)term  the  purposes  of  whose  creation  were  answered, 
but  which  had  not  been  expressly  assigned  to  attend  the 
inheritance,  but  merely  waited  upon  the  freehold  by  con- 
struction of  equity,  such  purchaser  can  defend  his  posses- 
sion by  the  term,  although  he  had  notice  of  any  intervening 
judgment. 

This  is  an  attempt  to  establish  a  new  distinction  between 
a  term  assigned  upon  an  express  trust  to  attend  the  inherit- 
ance, and  a  term  attendant  by  the  construction  of  equity, 
an  attempt  which  Lord  Hardwicke  appears  to  have  over- 
ruled in  the  case  of  Willoughby  v.  Willoughby ;  and  it 
would  be  very  imprudent  for  a  purchaser  of  an  estate  in 
any  case  to  rely  on  a  term  of  years,  as  a  protection  against 

{t)   N.  (1),  s.  13,  to  Co.  Litt.  290  b. 


(I)  In  this  case  the  purchaser  could  of  course  defend  himself  atrainst 
any  subsequent  incumbrancer  to  the  extent  of  the  subsisting  charge  on 
the  term  at  the  time  of  the  purchase.  It  has,  indeed,  been  thought  that 
if  there  are  two  mortgagees,  and  the  first  in  point  of  charge  buy  the 
inheritance,  he  lets  in  the  other  on  the  estate  discharged  of  the  prior 
mortgage.     See,  however,  Kennedy  v.  Daly,  1  Scho.  &  Lef.  356. 

(*517) 


590 


OF  ASSIGNxMENTS  OF  TERMS. 


any  incumbrance,  of  which  he  has  express  or  implied 
notice. 

It  is,  however,  settled  by  a  series  of  authorities(w), 
(*)that  a  purchaser  may  protect  himself  against  the  dower 
of  the  vendor's  wife,  by  a  term  created  previously  to  her 
right  of  dower  attaching  on  the  estate,  although  he  had 
actual  notice  of  the  marriage,  and  of  her  title  to  dower ; 
a  protection,  as  we  shall  hereafter  see(.T),  to  which  a  pur- 
chaser with  notice  is  not  entitled  in  any  other  instance,  or 
against  any  other  person(I). 

The  term,  however,  must  be  actually  assigned  to  a 
trustee  for  the  purchaser,  if  it  is  intended  to  be  used  as  a 
bar  to  the  wife's  dower(i/)(247)  ;  because,  by  the  rules  of 

(it)  Lady  Radnor  or  Bodmin  v.  Rotherham  or  Vendebendy,  Prec. 
Cha.  65 ;  1  Vern.  170.  356  ;  2  Cha.  Ca.  172  ;  Show.  P.  C.  69 ;  Brown 
r.  Gibbs,  Wray  V.  Williams,  Dudley  r.  Dudley,  Prec.  Cha.  97.  161. 
241  ;  and  see  Banks  v.  Sutton,  2  P.  Wms.  700  (I)  ;  Hill  v.  Adams,  or 
Swannock  v.  Lyford,  2  Atk.  208  ;  Ambl.  6  ;  Butler's  n.  (1)  to  Co.  Litt. 
208  a ;  Wynn  v.  Williams,  5  Ves. .  jun.  130  ;  D'Arcy  v.  Blake,  2  Scho. 
&  Lef.  387  ;  and  see  siqn'a,  p.  358. 

(x)  Infra,  ch.  16. 

(y)  See  Maundrell  v.  Maundrell,  7  Ves.  jun.  567  ;  10  Ves.  jun.  246, 
particularly  the  close  of  the  judgment. 

(I)  Note,  this  case  is  genarally  thought  to  be  over-ruled,  but  Mr. 
Powell  has  endeavored  to  show,  that  it  is  not  affected  by  later  deci- 
sions. See  2  Mort.  731,  4th  edit.  ;  and  in  a  manuscript  note  of  the 
Attorney-general  r.  Scott,  penes  auclorem  (For.  138,)  Lord  Talbot  is 
reported  to  have  said,  that  the  reason  of  the  decree  in  Banks  v.  Sutton 
was  different,  for  there  the  direction  of  the  will  was,  that  the  legal 
estate  should  be  con  veyed  to  Sutton,  and  the  wife  married  him  on  the 
expectation  of  that  estate,  and  it  was  a  fraud  in  the  husband  not  to 
call  for  the  settlement.  See  a  fuller  note  of  this  case  than  that  which 
is  published.  Appendix,  No.  18.  In  the  late  case  of  D'Arcy  v.  Blake, 
2  Scho.  &  Lef.  387,  it  was  said  by  the  Court,  that  what  was  thrown  out 
by  Sir  Joseph  Jekyll,  in  Banks  v.  Sutton,  had  been  long  over-ruled. 

(I)  All  these  observations  upon  dower  apply  to  cases  not  within  the 
late  act,  for  as  to  cases  within  the  act,  the  husband  alone  can  defeat 
the  wife's  right  of  dower.     Vide  supra,  ch.  7. 

(247)  See  Millcdge  v.  Lamar,  4  Des.  617. 
(*618) 


OP  ASSIGNMENTS  OF  TERMS. 


591 


equity,  every  term  attendant  on  the  inheritance  follows  it 
in  its  various  modifications,  and  in  the  charges  and  in- 
cumbrances which  attach  on  it,  or  are  created  in  it(2:)  ;  and 
therefore,  upon  the  marriage  of  a  man  seised  of  lands  of 
inheritance,  in  which  there  is  a  term  outstanding,  a  right 
of  dower  attaches  on  the  inheritance,  by  the  act  of  law,  and 
in  equity  the  term  is  equally  bound  with  the  inheritance ; 
and  as  the  claim  of  a  purchaser  is  not  more  favored  in 
equity  than  that  of  a  dowress,  a  purchaser  will  not  be 
entitled  to  the  benefit  of  an  outstanding  term,  to  the  pre- 
judice and  in  exclusion  of  a  dowress.  Indeed  the  deci- 
sion (a),  that  a  purchaser  could  defend  himself  against  a 
claim  of  dower  by  a  term  assigned  to  a  trustee  for  him, 
proceeded  not  on  principle,  but  on  the  universal  practice 
and  opinion  of  conveyancers  in  that  respect ;  for(6)  the 
Court  of  Chancery  and  House  of  Lords  were  of  opinion, 
that  if  they  were  not  to  permit  that  to  be  so,  it  would  be  to 
(*)overturn  the  general  rule  which  had  been  established 
and  practised  by  many  titles  to  estates,  and  tend  to  make 
such  titles  precarious  for  the  future.  The  same  reason 
does  not  apply  where  the  purchaser  neglects  to  take  an 
assignment  of  the  term  ;  it  having  always  been  the  gene- 
ral understanding  and  opinion  of  conveyancers,  that  to 
protect  against  dower,  ihe  term  must  be  actually  assigned 
to  a  trustee  for  the  purchaser. 

In  Swannock  v.  Lifford(c),  Lord  Hardwicke  appears  to 
Jiave  considered  it  clear,  and  it  was  admitted  at  the  bar, 
that  if  a  man  before  marriage  conveys  his  estate  privately, 
without  the  knowledge  of  his  wife,  to  trustees,  in  trust  for 

(2)  See  Charlton  v.  Low,  2  P.  Wms.  328. 

(a)  Lady  Radnor  v.  Vendebendy,  Show.  P.  C.  69. 

(b)  Per  Lord  Hardwicke.     See  Butler's  n.  w6t  sup. 

(c)  Butler's  n.(l)  to  Co.  Litt.  208  a;  and  see  2  P.  Wms.  709. 
Note,  in  the  case  of  Bottomley  v.  Lord  Fairfax,  Prec.  Cha.  336, 
the  Court  did  not  advert  to  a  conveyance  made  immediately  before  mar- 
riage. 

(*519) 


592  ^^  ASSIGNMENTS  OF  TERMS. 

himself  and  his  heirs  in  fee,  that  will  prevent  dower;  and 
it  appears  that  this  was  practised  by  a  reverend  Judge  of 
equity,  Mr.  Serjeant  Majnard,  who  made  a  lease  to  his 
servant  the  day  before  his  last  marriage(6^).  But  the  coun- 
sel who  argued  for  the  respondent  in  Radnor  v.  Vende- 
bendy,  before  the  House  of  Lords,  seems  to  have  admitted, 
that  if  a  husband,  just  before  marriage,  make  a  long  lease 
on  purpose  to  prevent  dower,  and  the  woman  expecting 
the  privileges  which  the  common  law  gives  to  loomen  7nar- 
ried,  survive  him,  equity  may  interpose  ;  and  this  doc- 
trine has  been  distinctly  recognised  by  a  learned  Judge 
and  author(e).  And  as  this  opinion  may  be  supported 
by  weighty  reasons,  a  purchaser  cannot,  it  is  conceived, 
be  advised  to  rely  upon  a  legal  estate,  created  in  fraud  of 
the  rights  of  marriage,  as  a  protection  against  the  wife's 
dower(/)  (248). 

It  hath  been  just  observed,  that  by  the  rules  of  equity 
(*)every  term  attendant  on  the  inheritance  follows  it  in 
its  various  modifications,  and  in  the  charges  and  incum- 
brances which  attach  on  it,  or  are  created  in  it.  Now  it 
is  a  consequence  of  this  rule,  that  whenever  the  inheri- 
tance is  conveyed  or  charged,  the  trustee  of  the  term 
becomes  a  trustee  for  the  person  in  whose  favor  the 
estate  is  conveyed  or  charged,  to  the  extent  of  his  claims 
on  the  estate.  If  the  trustee  have  notice  of  such  pur- 
chase or  incumbrance,  his  conscience  will  be  affected  ; 
and  if  he  assign  the  term  to  a  subsequent  purchaser,  or 

{d)  See  Show.  P.  C.  71. 

(e)  Gilb.  Lex  Praetor.  267. 

(/)  As  to  settlements  by  women  previously  to  marriage,  in  deroga- 
tion of  the  marital  rights,  see  Countess  of  Strathmore  v.  Bowes,  2  Bro. 
C.  C.  345,  1  Ves.  jun.  22.  and  the  cases  there  cited,  which  may  be 
thought,  in  some  measure,  to  apply  to  the  point  under  consideration. 

(248)   As   to   marital   rights,  See    Ward  v.    Wilson,   1    Des.   401. 
Garner  v.  Garner^s  Exrs.  1  Des.  437.     Taylor  v.  Heriot,  4  Des.  227. 
(*520) 


OF  ASSIGNjMENTS  OF  TERMS. 


693 


incumbrancer,  it  would  be  a  breach  of  trust,  and  he  would 
in  equity  be  decreed  to  make  satisfaction (o-).  A  trustee, 
therefore,  of  a  term  to  attend  the  inheritance,  cannot  be 
advised  to  assign  the  term  Mo  «»?/ purchaser  or  incum- 
brancer, unless  he  is  satisfied  that  his  immediate  cestui 
que  use  has  not  done  any  prior  act  to  charge  the  inheri- 
tance(/i). 

As  a  trustee  ought  to  be  satisfied,  that  the  person  by 
whose  direction  the  term  is  assigned,  is  the  person  en- 
titled to  require  the  assignment,  it  is  usual,  by  way  of 
authority  to  the  trustee,  to  recite  all  the  instruments,  &c. 
affecting  the  fee,  from  the  time  the  term  was  created  to 
the  date  of  the  deed  of  assignment ;  and  this  is  very  com- 
monly done,  even  where  the  term  has  been  assigned  to 
attend  the  inheritance.  In  the  latter  case,  however,  such 
a  recital  is  both  unnecessary  and  improper  ;  for  the  trustee 
can  only  be  affected  by  the  acts  of  his  own  cestui  que 
trust;  and  therefore,  where  a  term  has  been  actually 
assigned  to  attend  the  inheritance,  on  a  future  assign- 
ment of  it,  it  is  only  necessary  to  recite  the  deed  creating 
(*)the  term,  that  by  divers  conveyances  and  assurances 
the  fee  became  vested  in  A.  (the  person  requiring  the  as- 
signment) ;  and  that  by  divers  assignments  and  acts  in  law, 
and  ultimately  by  such  a  deed  (the  assignment  to  attend), 
the  term  became  vested  in  the  trustee,  in  trust  for  A. ;  and 
then  any  instruments  affecting  the  fee,  since  the  last  as- 
signment of  the  term,  to  attend  the  inheritance,  should 
be  recited. 


VI.  Before  we  quit  this  very  interesting  subject,  let  us 
inquire  in  what  cases  a  term  of  years   will  attend  the 

{g)   1  Term  Rep.  771. 

{h)  See  1    Pow.  Mort.   607,  508,  4th  edit.  ;    Evano   v.   Eickneil,   6 
Ves.  jun.  174.     Ex  parte  Knolt,  11  Ves.  jun.  609. 

VOL.   1.  75  (*521) 


594 


OF  ASSIGNMENTS  OF  TERMS. 


inheritance,  without  an  express  declaration  of  trust  for 
that  purpose  (*). 

First,  then,  it  is  a  general  rule,  that  whenever  a  term 
would  merge  in  the  inheritance  if  united,  it  shall  attend, 
if  in  a  different  person,  without  an  express  declaration,  by 
implication  of  law  founded  on  the  statute  of  frauds(A:). 
And  the  custom  of  Loudon  shall  not  prevail  over  this 
operation  of  law(/). 

Therefore,  where  a  person  purchases  the  inheritance  in 
his  own  name,  and  takes  an  assignment  of  a  term  in  the 
name  of  a  trustee(?«)  ;  or  takes  a  conveyance  of  the  fee  in 
the  name  of  a  trustee,  and  an  assignment  of  a  term  in  his 
own  name(ii)  ;  in  both  these  cases  the  term  attends  the 
inheritance,  unless  there  be  an  express  declaration  to  the 
(*)contrary,  whether  the  term  be  purchased  or  obtained 
before  or  after  the  purchase  of  the  fee.  And  in  general 
there  is  no  difference  between  an  assignment  of  a  term  to 
a  trustee,  in  trust  to  attend  the  inheritance,  and  an  assign- 
ment to  a  trustee,  in  trust  for  the  purchaser,  his  executors, 
administrators  and  assigns(o). 

(i)  See  an  admirable  opinion  of  Mr.  Fearne's  respecting  terms  of 
years,  2  Coll.  Jur.  297.  Mr.  Powell  has  in  the  last  edition  of  his  Trea- 
tise on  Mortgages  inserted  this  opinion  without  acknowledgment.  See 
1  Mort.  483—489. 

{k)   See  ]  Bro.  C.  C.  70. 

(I)  Greene  v.  Lambert,  1  Vern.  2,  cited  ;  Dowse  v.  Derivall,  ibid. 
104  ;  2  Vern.  67  ;  Reg.  Lib.  A.  1683,  fol.  283.  It  is  said  in  the  de- 
cree, that  the  lease  and  conveyance  were  in  law  one  conveyance  ;  Rich 
V.  Rich,  2  Cha.  Ca.  160. 

()u)  Tiffin  V.  Tiffin,  1  Vern.  1  ;  2  Cha.  Ca.  49.  55  ;  Whitchurch  r. 
Whitchurch,  2  P.  Wms.  236  ;  9  Mod.  124  ;  Gilb.  Eq.  Rep.  168  ;  Good- 
right  V.  Sales,  2  Wils.  829. 

(w)  North  V.  Langton,  2  Cha.  Ca.  156;  Dowse  v.  Derivall,  1  Vern. 
104  ;  Attorney-general  v.  Sands,  3  Cha.  Rep.  19. 

(o)  Best  V.  Stamford,  Prec.  Cha.  252  ;  Tiffin  v.  Tiffin,  1  Vern.  1  ; 
Holt  V.  Holt,  1  P.  Wms.  374,  cited ;  Pitt  v.  Cholmondley,  Chancery, 
9  Nov.  1751,  MS. 

(*522) 


OF  ASSIGNMENTS  OF  TERMS.  595 

So  the  same  rule  prevails  where  a  man  possessed  of  a 
term  for  years  contracts  for  the  inheritance,  for  the  vendor 
stands  seized  in  trust  for  the  purchaser  from  the  time  of 
the  contract(p). 

And  where,  by  reason  of  an  intermediate  term  out- 
standing, a  term  cannot  merge,  although  vested  in  the 
purchaser  together  with  the  fee,  yet  if  the  purchaser  be 
entitled  to  such  outstanding  term,  even  the  term  vested  in 
the  purchaser,  and  which  cannot  merge,  shall  attend  the 
inheritance,  without  any  express  declaration  for  that  pur- 
pose(9). 

And  even  if  the  purchaser  cannot  obtain  an  assignment 
of  the  whole  term,  yet,  if  a  nominal  reversion  only,  as  a 
reversion  of  a  few  days,  be  left  outstanding,  so  much  of 
the  term  as  is  assigned  to  a  trustee  for  the  purchaser  will 
be  deerned  attendant  on  the  inheritance,  without  any 
express  declaration  for  that  purpose.  But  where  the  term 
is  subject  to  rents  or  charges  in  favor  of  other  persons, 
whereby  the  purchaser  has  not  substantially  the  whole 
beneficial  interest  in  the  estate,  there  an  express  declara- 
tion is  necessary  to  make  the  term  attendant.  The  mere 
intent  of  the  purchaser  to  purchase  the  whole  interest, 
(*)and  that  the  term  should  attend  the  inheritance,  will  not 
vary  the  case. 

The  tw^o  last  propositions  appear  to  be  established  by 
the  case  of  Scot  v.  Fenhoullet(r).  From  the  imperfect 
statement  of  the  facts  in  this  case,  it  is  difficult  to  under- 
stand the  ground  of  Lord  Thurlow's  decision  ;  and  it  has 
been   generally   thought  that  the  decree   turned  on  the 


ip)  Capel  V.  Giidler,  Rolls,   16th  March  1804,  MS. ;  9   Ves.  jun. 
609  ;  Cooke  v.  Cooke,  2  Atk.  67.      Vide  supra,  ch.  4. 

iq)  Whitchurch  v.  Whitchurch,  2  P.  Wms.  236  ;   9  Mod.  124  ;   Gilb. 
Eq.  Rep.  168;  and  see  1  Bro.  C  C  170. 

(r)    1  Bro.  C.  C.  6.  9. 

(^523) 


596 


OF  ASSIGNMENTS  OF  TERMS. 


reversion,  which  the  purchaser  could  not  get  in(5).  The 
facts,  as  stated  in  Lord  Thurlow's  judgment,  on  the  re- 
hearing, reported  in  Brown,  are  shortly  these :  Mrs. 
Rudger  was  seised  in  fee  of  the  estate,  subject  to  two 
terms  of  years,  upon  which  it  should  seem  small  rents 
were  reserved  ;  which  terms  ^a  ere  vested  in  trustees  in 
trust  for  Mrs.  Rudger  for  life,  and  for  raising  certain 
annual  and  gross  sums  of  money.  Sir  Andrew  Chadvvick 
purchased  of  Mrs.  Rudger  the  fee-simple  estate,  and  so 
much  of  the  terms  as  related  to  it ;  and  the  trustees  exe- 
cuted their  power  by  granting  a  derivative  lease  to 
trustees  for  Sir  Andrew,  with  a  nominal  reversion  (eleven 
days)  to  themselves.  Lord  Thurlow  admitted,  that  Sir 
Andrew  meant  to  purchase  the  Avhole  interest,  and  that 
his  intent  was,  that  the  terms  should  attend  the  inherit- 
ance. If  they  did  attend  the  inheritance  in  this  case,  it 
must,  he  said,  be  by  iqiplication  of  law,  as  there  was  no 
express  declaration  ;  and,  after  showing  that  the  case  of 
Whitchurch  v.  Whitchurch(^)  did  not  apply  to  the  case 
before  him,  because  that  there  no  interest  was  outstand- 
ing, except  in  form,  he  added,  "  Sir  Andrew  Chadwick 
might  have  given  these  terms  to  a  stranger,  and  if  the 
inheritance  descended,  the  heir  at  law  might  demand  the 
rents  reserved  by  the  leases.  It  is  said  to  be  extremely 
plain,  that  Sir  Andrew  Chadwick  meant  to  consolidate 
(*)the  interests :  this  is  begging  the  question.  It  is  true 
he  meant  to  take  the  largest  interest  he  could,  but  by  no 
means  apparent  that  he  meant  to  consolidate  the  interests. 
/  lay  no  stress  on  the  days  of  the  reversion,  for  it  was 
meant  only  as  a  nominal  reversion  ;  they  did  not  mean  to 
reserve  a  substantial  interest.  It  would  be  necessary  there 
should   be  an  express  trust  to  make  this  attendant  on  the 

(s)   See  Capel  v.  Girdler,  MS.  and  9  Yes.  jiin.  509;   1  Cruise's  Dig. 
513,  s.  17,  and  the  marginal  abstract  of  the  case  in  Brown. 
{t)   Supra. 
(*624) 


OF  ASSIGNMENTS  OF  TERMS. 


597 


inheritance  ;  the  transaction  does  not  supply  a  necessary 
construction  of  law.  It  is  a  very  nice  point,  and  a  very 
new  one ;  whether  the  intent  to  purchase  the  whole  in- 
terest is  sufficient  to  make  the  term  attendant  on  the 
inheritance.  The  impossibility  he  was  under  of  purchasing 
the  whole,  rendered  an  express  declaration  necessary  to 
make  it  attend  the  inheritance.^''  Now,  at  first  sight,  it 
certainly  does  seem  impossible  to  reconcile  those  parts  of 
the  judgment  which  are  printed  in  italics.  But  it  appears 
by  an  opinion  of  Mr.  Fearne's(M),  in  consequence  of 
which  the  cause  was  reheard,  that  rents  were  reserved  by 
the  leases  granted  by  the  trustees  to  Sir  Andrew  Chad- 
wick,  and  the  usual  covenants  were  entered  into  by  him, 
and  the  trustees  were  restrained  to  that  mode  of  making 
a  title  by  their  trust,  which  required  a  reservation  of  rent, 
and  the  usual  covenants. 

This  fact  at  once  reconciles  every  part  of  the  judgment. 
Lord  Thurlow  was  of  opinion,  that  the  reversion  of  itself 
was  immaterial,  but  that  the  rents  reserved  by  the  leases 
rendered  an  express  declaration  necessary  to  make  the 
terms  attend  the  inheritance.  And  Mr.  Fearne  was  also 
of  opinion,  that  the  terms  would  not  be  attendant,  if  there 
was  any  intervening  benejicial  interest  in  any  third  person, 
to  divide  the  ownership  of  the  term  from  the  inheritance. 
But  as  he  was  told  that  the  rents  reserved  to  the  trustees 
upon  the  terms  were  afterwards  purchased  by  Sir  Andrew, 
(*)he  thought  the  terms  did  attend  the  inheritance,  al- 
though there  was  not  any  express  declaration  for  that  pur- 
pose ;  and  he  expressly  delivered  his  opinion,  subject  to 
this  fact,  which  he  had  learned  from  verbal  information 
only.  By  Lord  Thurlow's  decree  on  the  rehearing,  it  ap- 
pears clearly  that  the  rents  were  not  purchased,  and  con- 
quently  Mr.  Fearne  was  misinformed  in  this  respect. 

Mr.   Fearne's  opinion  on   this   point  is  very  strongly 

(u)  2  Collect.  Jurid.  297.     No.  6. 

(*525) 


598  ^^  ASSIGNMENTS  OF  TERMS. 

marked  ;  for  he  thought,  that  if  there  was  any  intervenhig 
outstanding  interest  between  the  ownership  of  the  term 
and  the  inheritance,  even  an  express  declaration  of  trust 
could  not  make  the  terms  attendant.  This,  however,  was 
going  too  far ;  and  Lord  Thurlow,  who  had  probably  seen 
this  opinion,  addressing  himself  to  the  cases  in  which 
a  term  would  attend  the  inheritance,  said,  that  might  be 
by  two  ways :  first,  by  express  declaration  ;  and  then, 
whether  the  term  would  or  would  not  merge,  and  whether 
the  reversion  be  real  or  only  nominal,  it  must  be  attendant 
on  the  inheritance. 

We  have  seen  that  where  a  term  attends  the  inheri- 
tance without  any  express  declaration,  it  is  by  implication 
of  law  ;  and  this  implication,  like  all  implications  of  law, 
or  equitable  presumptions,  may  be  rebutted  by  even  a 
parol  declaration  of  the  person  in  whose  favor  the  im- 
plication or  presumption  is  made(a:). 


VII.  A  term  for  years  attendant  on  the  inheritance, 
whether  by  express  declaration  or  by  implication,  is 
governed  by  the  same  rules  as  the  inheritance  itself  is 
subject  to.  Therefore  it  will  not  be  forfeited  by  the  felony 
of  the  owner  of  the  inheritance(?/)  ;  but  if  the  inheritance 
escheat,  the  term  will  go  with  'it(z). 

(*)So  it  seems,  that  such  a  term  cannot  pass  by  a  will 
not  executed  according  to  the  statute  of  frauds(«).  But 
it  appears  to  have  been  thought,  and  the  distinction,  it  is 
conceived,  may  be  supported  on  solid  grounds,  that  where 
a  term  attends  the  inheritance  merely  by  operation  of  law, 

{x)   See  j^osf.  ch.  15. 

(?/)   Attorney-general  v.  Sands,  3  Cha.  Rep.  19  ;  Hard.  488. 

(r)  Thruxton  v.  Attorney-general,  1  Vern.  340,  357. 

(a)  Tiffin  v.  Tiffin,  2  Cha.  Ca.  p.  49,  55 ;  2  Freem.  66  ;  Whit- 
church u.  Whitchurch,  Gilb.  Eq.  Rep.  168;  Villiers  v.  Villiers,  2  Atk. 
71.  J\'oic,  Nourse  v.  Yarworth,  Finch,  155,  was  before  the  statute  of 
frauds. 

t*526) 


OF  ASSIGNMENTS  OF  TERMS. 


599 


the  owner  may  expressly  bequeath   it  by  a  will  not  ex- 
ecuted with  the  solemnities  required  by  the  statute (6). 

It  is  clear,  that  where  the  devisor  intended  the  inheri- 
tance to  pass,  but,  by  reason  of  the  informality  of  the  will, 
it  descends  to  the  heir,  the  term  shall  not  go  to  the  de- 
visee, but  shall  follow  the  inheritance  in  its  devolution 
on  the  heir(c). 

So  where  a  termor  for  years,  having  contracted  for  the 
fee,  made  his  will,  whereby,  after  reciting  that  he  had 
purchased  the  term,  and  contracted  for  the  fee,  a  convey- 
ance of  which  could  not  then  be  obtained,  he  declared, 
that  when  a  conveyance  could  be  had,  the  estate  should 
be  settled  to  the  uses  mentioned  in  his  will,  and  directed 
that  the  remainder  of  the  term  should  remain  and  be 
attendant  on  the  inheritance.  The  person  who  contracted 
to  sell  the  fee  was  not  owner  of  it,  and  the  owner  sold  it 
to  another  person.  Sir  Joseph  Jekyll  held,  that  the  tes- 
tator intended  to  pass  the  inheritance  ;  and  although  he 
had  it  not,  yet  the  term  could  not  pass  by  the  will,  as 
such  a  construction  would  be  contrary  to  the  testator's 
intention(6?). 

(*)As  the  inheritance  of  an  estate  is  not  liable  to  simple 
contract  debts,  it  follows,  on  the  principle  before  noticed, 
that  a  term  attendant  on  the  inheritance  is  not  personal 
assets  for  the  payment  of  debts(e),  but  it  is  generally 
stated  that  such  a  term  is  real  assets : — This  is,  however, 

(6)  See  9  Mod.  127  ;  and  see  2  Collect.  Jurid.  276. 

(c)  Cases  cited  ante,  n.  (a). 

{d)  Bret  v.  Savvbiidge,  3  Bro.  P.  C.  141,  Tom.  ed. ;  and  see 
Fearne's  Ex.  Dev.  by  Powell,  145,  n.  (a).  S.  C.  Appendix,  No.  19. 
This  note  of  the  case  will,  I  hope,  be  acceptable  to  the  reader.  It  con- 
tains a  concise  statement  of  the  facts,  and  sir  Joseph  Jekyll's  judgment, 
which  is,  1  believe,  not  in  print,  and  comprises  some  interesting  remarks 
on  executory  bequests  of  terms. 

(e)  Thruxton  v.  Attorney-general,  1  Vern.  340 ;  Tiffin  v.  Tiffin,  I 
Vern.  1. 

(*527) 


600 


OF  ASSIGNMENTS  OF  TERMS. 


a  very  incorrect  expression :  the  term  itself  is  not  real 
assets,  but  is  merely  attendant  on  the  inheritance,  which 
is.  In  Chapman  v.  Bond(X),  it  appears  to  have  been 
thought,  that  although  the  term  was  in  a  trustee,  yet  if  it 
attended  the  inheritance  by  construction  of  equity  only, 
it  should  be  assets  in  equity  for  payment  of  the  owner's 
debts,  in  like  manner  as  a  term  taken  in  his  own  name 
would  be  assets  at  law.  But  this  opinion  is  clearly  over- 
ruled ;  and  where  a  term  is  in  a  trustee,  the  same  rules 
prevail  on  this  point,  whether  the  term  be  attendant  by 
express  declaration  or  not(^).  In  one  case  it  is  made  a 
query,  whether  if  tenant  in  tail  contract  debts  by  bond 
and  die,  and  it  can  be  made  to  appear  that  some  of  his 
ancestors,  who  bought  the  estate,  found  an  old  mortgage 
upon  it  for  a  long  term  of  years,  which  was  kept  on  foot 
to  wait  upon  the  freehold  and  inheritance,  such  lease  in 
equity  would  not  be  assets  in  the  hands  of  the  heir  in  tail, 
for  it  is  equity  only  makes  such  leases  descend,  and  it  is 
the  highest  equity,  that  a  man's  debts  should  be  paid(A).  J 
There  is  not,  however,  the  least  foundation  for  this  doubt.  ^ 
Equity,  in  this  respect,  follows  the  law,  and  at  law  the  \ 
estate  is  not  bound. 

But  where  the  inheritance  is  in  trustees,  and  the  owner 
has  a  term  in  his  own  name,  and  dies  indebted,  the  term, 
although  limited  to  attend  the  inheritance,  will  be  liable 
(*)to  debts,  for  it  is  assets  at  lavv(i)  ;  and  equity  here  fol- 
lows the  law(/c),  and  therefore  a  purchaser  should  never 

(/)  1  Vern.  188.  ^ 

(g-)  Baden  v.  Earl  of  Pembroke,  2  Vern.  62,  213  ;  2  Trea.  Eq.  c.       ^ 

4,  s.  6.  i 

{h)  Anon.  11  Mod.  p.  6.  1 

(i)   Thruxton  v.   Attorney-general,  uhi  sup. ;  Chapntian  v.   Bond,  1 

Vern.  188  ;  Attorney-general  v.  Sands,  Hard.  488. 

{k)   See  2  Cha.   Ca.  49  ;  Earl  of  Pembroke's  case,  9  Mod.   126, 

cited. 
(*628) 


OF  ATTESTED  COPIES.  gQ| 

take  the  term  in  his  own  name,  if  he  do   not   wish  his 
estate  to  be  personal  assets. 

If"  after  the  death  of  a  person  who  has  taken  an  assign- 
ment of  a  term  in  his  own  name,  and  a  convej'ance  of  the 
inheritance  in  the  name  of  a  trustee,  his  personal  repre- 
sentative assign  the  term  to  attend  the  inheritance,  it  will 
cease  to  be  assets  at  law ;  and  the  creditors  or  legatees 
will  be  entitled  to  satisfaction  against  the  personal  repre- 
sentative, as  for  a  devastavit;  and  may,  it  should  seem, 
even  follow  the  term  in  equity,  unless  as  against  a  bona 
jide  purchaser  without  notice,  against  whom  the  term  will 
not  be  severed  or  disannexed  from  the  inheritance  in 
favor  of  the  creditors  or  legatees,  although  the  purchaser 
did  not  take  an  assignment  of  the  term,  or  was  even  not 
aware  of  its  existence(/)(249). 

But  these  distinctions  will,  as  to  persons  who  have 
died  since  the  29th  August  1833,  or  who  shall  hereafter 
die  seised  of  freehold,  customaryhold  or  copyhold  estates, 
in  a  great  measure  cease  to  exist ;  for  the  3  &:  4  W.  4, 
c.  104,  has  made  all  such  estates  assets  for  the  payment 
of  even  simple  contract  debts. 

(*)SECTION  III, 
Of  Attested  Copies. 


Thus  have  we  taken  a  cursory  view  of  the  doctrine 
respecting  terms  of  years,  a  learning  which  demands  the 
practical  conveyancer's  peculiar  attention  ;  and    we  are 

(/)  Charlton  v.  Low,  3  P.  Wms.  32. 

(249)  See  The  People  v.  Pleas,  and  Clarh,  2  Johns.  Cas.  376. 
VOL.   I.  76  (*529) 


QQ2  OF  ATTESTED  COPIES. 

now  to  consider  in  what  cases  a  purchaser  is  entitled  to 
attested  copies  of  the  title-deeds. 

If  a  purchaser  cannot  obtain  the  title-deeds,  he  is,  as 
we  have  already  seen,  entitled  to  attested  copies  of  them 
at  the  expense  of  the  vendor,  unless  there  be  an  express 
stipulation  to  the  contrarj(??i) ;  and  although  he  may  not 
be  entitled  to  the  possession  of  the  deeds,  yet  he  has  a 
right  to  inspect  them,  and  the  vendor  must  produce  them 
for  that  purpose(?2). 

But  a  purchaser  is  not  entitled  to  attested  copies  of 
instruments  on  record. 

This  was  decided  in  the  case  of  Campbell  v.  Camp- 
bell(o),  where  the  Master,  in  taxing  costs  incurred  by 
the  sale  of  considerable  estates,  disallowed  the  charges 
for  attested  copies  of  deeds  and  documents  upon  record  ; 
and  upon  exceptions  to  his  report  on  that  account  com- 
ing on,  the  Master  of  the  Rolls  over-ruled  them,  and 
held  that  a  purchaser  was  not  entitled  to  such  copies  at 
the  expense  of  the  vendor. 

In  some  cases,  however,  a  purchaser  can  obtain  attested 
copies  even  of  instruments  on  record.  For  a  purchaser 
is  entitled  to  examine  the  abstract  with  the  original  title- 
deeds,  or  with  attested  copies  of  them ;  and,  therefore, 
if  a  vendor  has  not  the  instrument  itself,  and  cannot 
(*)obtain  it,  he  is  bound  to  procure  an  attested  copy  of  it, 
to  enable  the  purchaser  to  ascertain  that  the  abstract  is 
correct ;  and  when  it  is  obtained,  the  purchaser  is  of  course 
entitled  to  it  on  the  completion  of  the  purchase  ;  unless, 
indeed,  the  vendor  retains  other  estates  holden  under  the 
same  title. 

In  a  case  before  Lord   Rosslyn,  where  there   was  an 

(»»)  Dare  v.  Tucker,  6  Ves.  juii.  460 ;  Berry  r.  Young,  2  Esp.  Ca. 
640,  n. 

(n)  Berry  v.  Young,  ubi  sup, 

(o)  Rolls  sittings  after Term,  1793,  3IS. 

(*530) 


i 


OF  ATTESTED  COPIES. 


603 


I 


agreement  that  the  vendor  should  produce  the  original 
title-deeds,  his  Lordship  construed  it,  not  only  as  an  en- 
gagement to  produce  the  title-deeds,  but  as  a  negative 
stipulation,  that  he  should  not  give  attested  copies.  This 
was  certainly  presuming  a  great  deal.  Lord  Eldon  has 
since  thought  that  the  pressure  of  the  stamp  duties  led 
to  that  decision(p)  ;  and  ,  it  is  probable,  that  a  similar 
case  would  now  receive  a  different  determination. 

In  a  recent  case,  Lord  Eldon  compelled  the  vendor,  at 
his  own  expense,  to  furnish  attested  copies,  the  purchaser 
having  had  no  intimation  that  he  could  not  have  the  deed. 
For,  his  Lordship  said,  if  he  had  notice  that  he  was  not 
to  have  them',  he  would  regulate  his  bidding  accordingly  ; 
conceiving  that  he  was  to  bear  the  expense  of  procuring 
copies(9').  From  this,  it  may  be  inferred,  that  notice  that 
the  purchaser  cannot  have  the  deeds  is  tantamount  to  a 
stipulation,  that  he  shall  not  be  furnished  with  attested 
copies  at  the  seller's  expense.  The  general  practice  of 
the  profession,  founded  on  the  decided  cases,  is,  that  the 
seller,  in  the  absence  of  an  express  stipulation  to  the  con- 
trary, is  bound,  at  his  own  expense,  to  furnish  the  pur- 
chaser with  attested  copies:  and  Lord  Eldon  does  not 
appear  to  have  intended  to  establish  a  new  rule. 

Where  a  purchaser  cannot  claim  the  title-deeds,  it  is  of 
great  importance  to  him  to  obtain  attested  copies  of  them. 
But  attested  copies  are  not  of  themselves  sufficient  secu- 
rity (*)to  a  purchaser, — they  are  indeed  mere  waste  pa- 
per against  strangers,  and  cannot  be  used  upon  an  eject- 
ment, unless,  perhaps,  as  between  the  parties  themselves. 
Therefore,  in  order  to  enable  a  purchaser  to  effectually 
manifest  and  defend  his  title  and  possession,  he  is  also 
entitled,  at  the  expense  of  the  vendor,  to  a  covenant  to 
produce  the  deeds  themselves,  at  the  expense  of  the  pur- 

(;j)   See  6  Ves.  jun.  460. 

iq)  Boughton  V.  Jewell,  15  Ves.  jun.  176. 

(*531) 


604 


OF  ATTESTED  COPIES. 


chaser(r)  ;  which  should,   in  most  cases,  be  carried   into 
effect  by  a  separate  deed.     And   where  a  vendor  retains 
the  deed  by  which  the  estate  he  is  selling  was  conveyed 
to  him  (which  is  mostly  the  case  when  it  relates  to  other 
estates),  it  seems  advisable   for  the  purchaser  to  require  a 
memorandum  of  his  piu'chase  to  be  indorsed  on  such  deed. 
And  where  the  title-deeds  cannot  be  delivered,  assign- 
ees must,  like  any  other  vendor,   give  attested  copies  of 
them  at  the  expense  of  the  estate,  but  their  covenant  for 
the   production  of  the  deeds  should   be   confined   to  the 
time  of  their  continuance  as  assignees(5).      If,  however, 
the  covenant   is  so   confined,  the  purchaser  should  have 
some  security  that  the   person  who  shall  ultimately  be- 
come entitled  to  the  custody  of  the  deeds  will  covenant 
for  their  production.     The  proper  course  seems  to  be   for 
the  assignees'  covenant  to   be   made  determinable  in  case 
they  shall  procure  the  person  to  whom  they  shall  deliver 
the  deeds  to  enter  into  a  similar  covenant  with  the  pur- 
chaser. 

It  may  here  be  remarked,  that  although  a  purchaser  of 
part  of  an  estate  has  taken  a  covenant  for  the  production 
of  the  deeds,  yet,  if  they  afterwards  come  into  his  pos- 
session by  accident,  no  person  can  recover  them  from  him 
wMio  has  not  a  better  right  to  them  than  he  has(^). 

And  if  a  purchaser  without  fraud  leave  the  title-deeds 
(*)in  the  hands  of  the  seller,  yet  he  may  recover  them  in 
trover  from  the  holder  of  them,  although  the  latter  may 
have  advanced  money  upon  them  to  the  seller,  and  he  is 
not  bound  to  pay  the  money  advanced(tt). 

Supposing  a  purchaser  to  be  entitled  to  the  custody  of 
the  deeds  themselves,  yet  if  any  of  them  be  lost,  and  the 

(r)  Berry  i'.  Young,  2  Esp.  Ca.  640,  n. 

(s)  Per  Lord  Eldon,  Ex  parte  Stuart,  2  Rose,  216. 

(/)  Yea  V.  Field,  2  T.  Rep.  708. 

(«)  Harrington  v.  Price,  3  Barn.  &  Adoln.  170. 

(*532) 


OF  ATTESTED  COPIES. 


605 


vendor  can  deliver  over  copies  which  would  be  admitted 
as  evidence  at  law,  the  purchaser  will  be  compelled  to 
take  the  ik]e(tv).  But  where  a  deed  essential  to  the  title 
is  in  the  hands  of  a  third  person  who  is  entitled  to  retain 
it,  and  would  be  compelled  to  produce  it  to  the  purchaser, 
the  Court  will  not  compel  the  purchaser  to  take  the  title 
unless  the  deed  is  deposited  for  the  benefit  of  all  parties(a;). 
The  purchaser  is  not  bound  to  rely  upon  the  equitable 
right  to  compel  the  production,  but  is  entitled  to  the 
deeds,  or  a  valid  covenant  to  produce  them(y/). 

It  frequently  happens,  that  a  person  having  a  covenant 
for  production  of  the  title-deeds  to  his  estate,  sells  only 
part  of  the  estate,  and  retains  his  purchase-deed,  and  the 
covenant  to  produce  the  deeds  ;  and  in  such  cases  I  should 
conceive  the  practice  to  be  for  the  vendor  to  enter  into 
the  usual  covenant  for  production  of  the  title-deeds  in  his 
possession,  which  of  course  would  include  the  original 
covenant  to  produce  the  deeds.  But  it  seems  that  Mr. 
Fearne  thought(2:)  that  a  purchaser  was,  in  cases  of  this 
nature,  entitled  to  require  the  vendor  to  covenant  for  the 
production  of  the  deeds  to  such  an  extent  as  the  covenant 
in  the  vendor's  possession  entitled  him  to  the  production 
(*)thereof,  unless  he  could  procure  a  new  covenant  for 
that  purpose  from  his  grantors  to  the  new  purchaser ;  but 
that  such  covenant  from  the  vendor  should  not  be  enforc- 
ed, in  case  he  produce  the  original  covenant  to  produce 
the  deeds,  when  it  should  be  required  to  defend  the  pur- 
chaser's title. 

[iv)  Harvey  v.  Phillips,  2  Atk.  541.  See  an  opinion  of  Mr.  Booth's 
2  Ca.  and  Opin.  223.  As  to  the  cases  in  which  the  execution  of  an 
instrument  will  be  presumed,  see  Skipwith  v.  Shirley,  11  Ves.  jun.  64  ; 
Ward  V.  Garnons,  17  Ves.  jun.  134  ;  and  see  Holmes  v.  Ailsbie,  1 
Madd.  551. 

(x)  Shore  v.  Collett,  Coop.  234. 

(y)  Barclay  v.  Raine,  1  Sim.  &  Stu.  449. 

(s)  Posth.  113. 

(*633) 


QQ^  OF  COVENANTS  FOR  TITLE. 

It  is  not  unusual  to  insert  a  proviso  in  a  deed  of  cove- 
nant, to  produce  title-deeds  for  determining  the  covenant, 
in  case  the  vendor  sell  the  part  of  the  estate  retained  by 
him,  and  procure  the  person  to  whom  the  estate  is  sold, 
and  the  title-deeds  are  delivered,  to  enter  into  a  similar 
covenant  with  the  first  purchaser,  for  production  of  the 
title-deeds. 

SECTION  IV. 
Of  Covenants  fo}'  Title. 


Let  us  now  proceed  to  consider  what  covenants  for 
title  a  purchaser  is  entitled  to. 

The  covenants  usually  entered  into  by  a  vendor  seised 
in  fee,  are,  1st,  that  he  is  seised  in  fee ;  2dly,  that  he  has 
power  to  convey  ;  3dly,  for  quiet  enjoyment  by  the  pur- 
chaser, his  heirs  and  assigns ;  4thly,  that  the  estate  is 
free  from  incumbrances  ;  and  lastly,  for  further  assur- 
ance (a). 

Where  a  vendor  has  only  a  power  of  appointment,  the 
first  covenant  ought  to  be,  that  the  power  was  well 
created,  and  is  subsisting ;  and  the  other  covenants  should 
be  similar  to  those  entered  into  by  a  grantor  seised  in  fee. 
In  small  purchases  the  first  covenant  is  sometimes  omitted, 
which  may  be  safely  done,  for  the  first  and  second  are 
synonymous  covenants. 

(*)It  sometimes  happens,  that  a  purchaser  consents  to 
take  a  defective  title,  relying  for  his  security  on  the  ven- 
dor's covenants.     Mr.  Butler  remarks,  that  where  this  is 

(a)   See  jyosl.  ch.  13. 
(*534) 


OF  COVENANTS  FOR  TITLE. 


607 


the  case,  the  agreement  of  the  parties  should  be  particu- 
larly mentioned,  as  it  has  been  argued,  that  as  the  defect 
in  question  is  known,  it  must  be  understood  to  have  been 
the  agreement  of  the  purchaser  to  take  the  title  subject 
to  it,  and  that  the  covenants  for  the  title  should  not  ex- 
tend to  warrant  it   against  this  particular  defect (6) (250). 

(fc)  See  Butler's  n.  (1)  to  Co.  Litt.  384  a.  See  also  Savage  v. 
Whitbread,  3  Cha.  Rep.  14. 

(250)  Every  right  to,  or  interest  in  the  land  granted,  to  the  diminu- 
tion of  the  value  of  the  land,  but  consistent  with  the  passing  of  the  fee 
of  it  by  the  conveyance,  must  be  deemed  in  law  an  incumbrance.  We 
say  consistent  with  the  passing  of  the  fee  of  the  land  by  the  convey- 
ance, because  if  nothing  passed  by  the  deed,  the  grantee  cannot  hold 
the  estate  under  the  grantor.  Thus  a  right  to  an  easement  of  any  kind 
in  the  land  is  an  incumbrance.  So  is  a  mortgage.  So  also  is  a  claim 
of  dower,  which  may  partially  defeat  the  plaintiff's  title,  by  taking  a  free- 
hold in  one  third  out  of  it.  And  for  the  same  reason  a  paramount  right 
which  may  wholly  defeat  the  plaintiffs  title  is  an  incumbrance.  It  is  a 
weight  on  his  land,  which  must  lessen  the  value  of  it.  Conformably  to 
these  principles  thus  laid  down  by  the  Chief  Justice,  it  was  held  in 
Prescott  V.  Trueman,  4  Mass.  627,  where  the  defendant  covenanted 
that  the  lauds  sold  in  fee  were  free  from  all  incumbrances ;  and  the 
plaintiff"  sued  for  covenant  broken,  that  a  paramount  right  was  an  incum- 
brance. There,  the  defendant  being  seized  of  the  lands  in  question, 
which  seisin  he  acquired  by  a  conveyance  from  J.  S.,  who  was  in  by 
disseisin.  The  breach  alleged  was  that  the  heirs  of  the  disseisee  had, 
at  the  time  when  the  deed  was  executed,  a  paramount  right  to  said  lands. 
If  the  plaintiff",  the  grantee,  observed  the  Chief  Justice,  has  not  extin- 
guished the  paramount  right,  but  it  still  remains  against  his  title,  he  shall 
recover  nominal  damages  only.  Neither  shall  the  grantor,  the  defend- 
ant, after  having  once  paid  the  value  of  the  land,  be  afterwards  call- 
ed on  by  the  plaintiff"  on  a  subsequent  eviction.  If  the  plaintiff"  has 
at  a  just  and  reasonable  price,  extinguished  that  title,  so  that  it  can  ne- 
ver afterwards  prejudice  the  grantor,  the  jury,  who  may  enquire  of  the 
damages,  will  consider  this  price  as  the  measure  of  damages. 

Here,  the  covenant  of  seizin  is  not  broken,  for  it  is  admitted  that  the 
grantor  was  seized  :  neither  is  the  covenant  of  a  right  to  convey,  bro- 
ken, for  a  man  seized  has  a  right  to  convey  :  and  on  the  warranty  there 
is  no  remedy,  until  after  eviction. 

The  covenant  that  the  grantor  has  good  right  to  convey  an  indefeasi- 


608 


OF  COVENANTS  FOR  TITLE. 


And  it  may  be  further  observed,  that  in  cases  of  this  na- 
ture, unless  the  objection  to  the  title  appear  on  the  face 
of  the  conveyance,  the  agreement  to  indemnify  against 
the  defect,  and  the  covenants  to  guard  against  it,  should 
be  entered  into  by  a  separate  instrument. 

With  respect  to  the  persons  against  whose  acts  a  ven- 
dor is  bound  to  covenant,  it  seems  that, 

1st.  A  vendor  who  actually  purchased  the  estate  him- 
self, for  money,  or  other  valuable  consideration,  and  ob- 
tained proper  covenants  for  the  title,  is  not  bound  to 
enter  into  covenants  extending  beyond  his  own  acts(c). 
This,  Mr.  Fearne  remarks(f/),  is  a  practice  founded  in 
reason,  where  the  vendee  obtains  the  full  benefit  of  all  the 
covenants  in  the  conveyance  to  the  vendor,  to  the  same 
extent  as  his  vendor  has  them,  by  obtaining  the  possession 
of  the  deeds  containing  those  covenants.  When  the 
vendor  has  parted  with  his  means  of  claim  or  remedy 
against  his  grantor  for  breach  of  his  covenants,  and  trans- 
ferred them  to  the  purchaser,  by  delivery  of  the  deeds, 
and  such  vendee  comes  into  the  vendor's  place,  in  that 
respect,  by  the  acquisition  of  such  deeds,  it  would  be 
unreasonable  that  the  vendor  should  make  himself  liable 
(*)for  any  such  breach.     He,  by  departing  with  the  means 

(c)  See  2  Bos.  &  Pull.  22  ;  and  see  two  oping,  in  3  Pow.  Convey. 
206,  210. 

(d)  Posth.  110. 

ble  estate  in  fee,  but  nominal  damages  could  be  given,  until  the  es- 
tate conveyed  had  been  defeated,  or  the  right  to  defeat  it  had  been  ex- 
tinguished. But  this  covenant  is  not  usually  in  our  deeds  of  convey- 
ance. 

The  same  principle  was  recognized  in  Funk  v.  Voneida,  11  S.  &  R. 
109,  where  the  court  held  the  mortgage  was  a  subsisting"  mcumbrance 
although  the  money  was  not  due;  and  the  plaintiff  was  entitled  to  nom- 
inal damages.  And  that  the  grantee  if  he  chose  might  pay  off  the 
mortgage,  and  then  he  might  recover  the  price  it  cost  him.  The  exist- 
ence of  the  incumbrance  is  the  breach  of  covenant. 

(*535) 


OF  COVENANTS  FOR  TITLE. 


609 


of  remedy  or  compensation,  must  be  understood  to  have 
discharged  himself  from,  and  the  vendee,  by  accepting 
those  means,  to  have  taken  upon  himself  the  peril  or  risk 
of,  such  breach,  and  the  duty  of  enforcing  its  remedy  or 
compensation. 

2dly.  Mr.  Fearne,  however,  thought,  that  where  a 
vendor  retains  the  title-deeds,  he  is  bound  to  enter  into 
covenants  extending  to  the  acts  of  the  persons  against 
whose  acts  he  is  indemnified  by  the  deeds  in  his  posses- 
sion(e) :  but  he  also  thought  these  covenants  should  be 
qualified  by  the  insertion  of  a  covenant  on  the  part  of  the 
purchaser,  that  in  case  any  claim  should  be  made  under 
the  vendor's  covenants  against  the  acts  of  the  former 
owner,  and  he  (the  vendor)  should  produce  the  deeds,  in 
order  to  enable  the  purchaser  to  avail  himself  of  the  cove- 
nants contained  in  them,  then  no  advantage  should  be 
taken  of  the  vendor's  covenants. 

This,  however,  is  a  distinction  never  attended  to  in 
practice :  if  a  vendor  is  entitled  to  retain  the  deeds,  he 
enters  into  the  usual  covenant  for  the  production  of  them, 
but  never  enters  into  more  extensive  covenants  for  the 
title,  on  account  of  the  retention  of  the  deeds. 

3dly.  Where  a  vendor  does  not  claim  by  purchase  in 
the  vulgar  and  confined  acceptation  of  that  word(jQ  ;  that 
is,  by  way  of  bargain  and  sale  for  money,  or  some  other 
valuable  consideration,  a  purchaser  is  entitled  to  require 
covenants  from  such  vendor,  extending  to  the  acts  of  the 
last  purchaser.  For  instance,  if  I  sell  an  estate  which 
was  devised  to  me,  and  the  devisor's  father  purchased  the 
estate,  the  covenants  for  title  are  extended  to  the  acts 
of  the  father(^)(251).     And  a  person  claiming  under  a 

(e)  See  the  Lord  Buckhurst's  case,  1  Rep.  1. 

(/)   See  2  Black.  Comm.  241. 

(g)   See  ace.  two  opins.  in  3  Pow.  Con  v.  206,  210. 

(251)   See4Munf.  144. 

VOL.  1.  77  (*536) 


glQ  OF  COVENANTS  FOR  TITLE. 

voluntary  (*)conveyance  is  considered  in  the  same  light  as  a 
devisee.  So  a  person  whose  estate  is  sold  under  an  order 
of  a  court  of  equity,  or  by  a  trustee  to  whom  he  has  con- 
veyed it  upon  trust  to  sell,  is  bound  to  covenant  for  the 
title  in  the  same  manner  as  he  must  have  done  if  he  him- 
self had  sold  the  estate. 

But  although  the  universal  and  settled  practice  of  con- 
veyancers is,  to  extend  covenants  for  the  title  to  the  acts  of 
the  last  purchaser,  yet  the  Court  of  Chancery  appears  to 
hold,  that  a  person  not  claiming  by  purchase  is  only  bound 
to  covenant  against  his  own  acts,  and  those  of  the  person 
immediately  preceding  him(/i).  The  rule  established  by 
practice  is  undoubtedly  the  most  reasonable,  for  every 
purchaser  is  certainly  entitled  to  a  regular  chain  of  cove- 
nants for  the  title.  No  solid  reason  can  be  given  why  any 
line  should  be  drawn,  and  the  covenants  should  extend 
to  the  person  only  who  immediately  preceded  the  vendor  ; 
and,  however  the  Court  of  Chancery  may  act  upon  this 
rule,  the  practice  of  the  Profession  has  taken  too  deep 
a  root  to  be  easily  extirpated. 

4thly.  Where  an  estate  is  sold  by  trustees  under  a  will, 
and  the  money  is  to  be  applied  in  payment  of  debts,  &c. 
and  the  residue  is  given  over,  a  purchaser  is  not  entitled 
to  any  covenants  for  the  title,  because  no  line  can  well  be 
drawn  as  to  the  quantum  which  would  make  a  person 
liable  to  covenant ;  and  therefore,  if  this  rule  were  not 
settled,  a  person  who  only  took  5/.  might  as  well  be  re- 
quired to  covenant,  as  one  who  took  a  large  sum(/)(252). 

The  same  rule  applies  ex  necessitate  where  an  estate  is 
sold  for  similar  purposes  under  an  order  of  a  court  of 

(/i)   See  3  Atk.  267  ;   3  Ves.  jun.  236  ;   and  see  14  Yes.  239. 

(t)  Wakeman  r.  Duchess  of  Rutland,  3  Ves.  jun.  233,  504,  affirm- 
ed in  Dom.  Proc.  8  Bro.  P.  C.  145  ;  and  see  Lloyd  v.  Griffith,  Atk. 
264. 


(252)   See  GranUand  v.  Wight,  6  Munf.  295. 
(*536) 


OF  COVENANTS  FOR  TITLE.  gjj 

equity.  If  a  different  rule  prevailed,  .the  consequence 
(*)would  be,  that  the  estate  could  never  be  sold  by  de- 
cree, till  the  account  was  taken  of  all  the  debts  ;  because, 
before  that  account  was  taken,  it  could  not  appear  who 
were  to  join  in  the  conveyance,  what  was  the  number, 
and  in  what  proportions  they  were  beneficially  entitled  ; 
but  it  is  the  constant  practice  to  sell  the  estate  in  the  first 
instance ;  of  course  the  title  can  be  made  only  by  the 
trustees  for  sale,  without  calling  in  the  parties  who  are 
presumptively  beneficially  interested(/i:). 

In  both  these  cases,  therefore,  the  purchaser  is  only  en- 
titled to  a  covenant  from  the  parties  conveying,  that  they 
have  done  no  act  to  incumber.  But  it  is  to  be  lamented, 
that  in  these  instances  also  the  rule  of  the  Court  of 
Chancery  differs  from  the  practice  of  the  Profession ;  for 
it  always  has  been,  and  still  is,  the  practice  of  the  Pro- 
fession to  make  all  the  cestuis  que  trust,  whose  shares  of 
the  purchase-money  are  in  anywise  considerable,  join  in 
covenants  for  the  title,  according  to  their  respective  in- 
terests. 

The  rule  of  equity  on  this  subject  may  of  course  be  al- 
tered by  the  agreement  of  the  parties(/)  ;  and  therefore, 
in  all  agreements  for  purchase  of  estates  from  devisees, 
&.C.  in  trust  to  sell,  the  purchaser  should  stipulate,  that 
such  of  the  persons  entitled  to  the  purchase-money  as  he 
may  require,  shall  join  in  the  usual  covenants  for  the  ti- 
tle. Where,  however,  the  trust  is  to  pay  debts,  or  trifling 
legacies,  which  will  exhaust  the  whole  of  the  purchase- 
money,  it  is  obvious  that  such  a  stipulation  could  not  be 
carried  into  effect,  and  it  had  therefore  better  be  omitted. 
It  must,  however,  be  remarked,  that  the  case  of  Wake- 
man  V.  Duchess  of  Rutland  is  by  no  means  an  authority 
that  cestuis  que  trust  of  money  to  be  produced  by  the  sale 

{k)  See  3  Yes.  Jun.  505,  506. 
(/)    See  3  VciJ.  Jim.  236. 

(*537^, 


612 


OF  COVENANTS  FOR  TITLE. 


of  estates  devised  to  trustees  to  sell,  cannot  in  any  instance 
(*)be  required  to  covenant  for  the  title.  Where  the  mon- 
ey to  arise  by  sale  of  the  estate  is  absolutely  given  to  two 
or  more  persons,  they  are  substantially  owners  of  the  es- 
tate, and  must  accordingly  covenant  for  the  title. 

So,  even  where  the  money  is  in  the  first  place  to  be 
applied  in  payment  of  debts,  yet  if  they  are  all  paid  pre- 
viously to  the  sale,  the  cestuis  que  trust  must,  it  is  con- 
ceived, covenant  for  the  title. 

Upon  this  case  another  observation  occurs.  Lord 
Rosslyn  seemed  to  think  it  dangerous  to  make  the  cestuis 
que  trust  parties  to  the  conveyance ;  he  said,  the  pru- 
dence of  the  common  clause,  that  the  receipts  of  the  trus- 
tees shall  be  a  discharge  to  the  purchaser,  would  be  de- 
feated, and  the  purchaser  would  take  upon  himself  the 
knowledge  of  all  the  trusts  of  the  will(m).  If  this  be  so, 
conveyancers  are  indeed  reprehensible  ;  but  as  the  pur- 
chaser buys  under  the  will,  whether  the  cestuis  que  trust 
are  or  are  not  parties  to  the  conveyance,  he  is  equally 
affected  with  the  knowledge  of  the  trusts ;  and  yet,  as 
cujus  est  dare  ejus  est  disponere,  it  cannot  be  supposed 
that  equity  would  compel  a  purchaser  to  see  to  the  ap- 
plication of  the  purchase-money,  wiien  the  testator  him- 
self has  declared  he  shall  not.  In  Ewer  v.  Corbet(«), 
it  was  holden,  that  notice  to  a  purchaser  of  a  bequest  of 
a  term  did  not  signifj^,  as  every  person  buying  of  an  exe- 
cutor ichere  he  is  named  executor,  necessarily  must  have 
such  notice.  This  resolution  applies  to  the  point  in  ques- 
tion, and  seems  to  place  it  beyond  controversy. 

Lastly,  in  conveyances  by  the  Crown,  a  purchaser  is  not 
entitled  to  any  covenants  for  the  title  ;  and  where  an  es- 
tate is  sold  by  assignees  of  a  bankrupt,  the  purchaser  is 
only  entitled  to  a  covenant  from  the  assignees,  that  they 
have  not  done  any  act  to  incumber  the  estate. 

(m)  See  3  Ves.  Jiin.  236.  (n)  2  P.  Wms.  148. 

1*538) 


OF  SEARCHING  FOR  INCUMBRANCES.  gjg 

(*)But  a  bankrupt  is  always  made  a  party  to  the  con- 
veyance of  his  estate,  to  prevent  the  difficulty  which  the 
purchaser  might  otherwise  be  put  to  in  maintaining  and 
proving  the  title  ;  and  the  bankrupt  is  generally  made  to 
enter  into  covenants  for  the  title  in  the  same  manner  as  he 
would  have  done,  had  he  sold  the  estate  while  solvent. 

SECTION  V. 

Of  searching  for  Incumbrances. 


It  now  comes  in  order  to  consider  in  what  cases 
incumbrances  should  be  searched  for. 

I.  There  are  few  cases  in  which  judgments  should  not 
be  searched  for  on  the  part  of  a  purchaser ;  and  if  there 
is  any  reason  to  suspect  the  vendor,  it  is  absolutely  neces- 
sary to  search  immediately  before  the  conveyance  is  exe- 
cuted, lest  any  judgments  may  have  been  entered  up 
during  the  treaty;  although  if  any  judgments  should  be 
entered  up  after  the  purchase-money,  being  an  adequate 
consideration,  is  actually  paid,  equity  would  relieve  the 
purchaser  against  the  judgments,  notwithstanding  that 
they  were  entered  up  previously  to  the  execution  of  the 
conveyance ;  the  vendor  being,  in  equity,  only  a  trustee 
for  the  purchaser,  and  a  judgment  being  merely  a  general 
lien,  and  not  a  specific  lien  on  the  land  :  and  this  equity 
prevails,  whether  the  judgment  creditor  had  or  had  not 
notice  of  the  contract(o)(I). 

(0)  See  Nels.  Ch.  Rep.  184  ;  Finch  v.  Earl  of  Winchelsea,  1  P. 
Wms.  278;  10  Mod.  418;  11  Vin.  Ab.  118;  and  see  Kennedy  r. 
Daly,  1  Scho.  &  Lef.  373  ;  Prior  v.  Penpraze,  4  Price,  99. 

(1)  See  9  Geo.  4,  c.  35,  as  to  judgments  binding  purchasers  in  Ire- 
land. 

(*539) 


614 


OF  SEARCHING  FOR  INCUMBRANCES. 


(*)In  a  case  where  a  reversioner  in  fee  first  executed 
a  bond,  with  a  warrant  of  attorney  to  enter  up  judgment, 
and  then  mortgaged  to  another  in  fee,  and  on  the  1st  of 
January  1810  contracted  to  sell  the  estate  to  a  purchaser 
without  notice,  and  on  the  5th  of  February  1810  a  judg- 
ment was  entered   up  and  docketed,  on  the  28th  of  No- 
vember 1812  an  elegit  issued,  and  an  inquisition  taken 
thereon  on  the  20th  of  January  1813,  of  which  notice  was 
given  to  the  purchaser  on  the  16th  of  April  1810,  but  on 
the   15th  of  March  1810  the  mortgagee  in  fee  and  the 
mortgagor  had  conveyed  the  estate  in  fee  to  the  purchaser 
without  notice,  and   a   part  of  the   purchase-money  was 
secured  to  the  seller  by  a  legal  term  of  years,  and  which 
was  unpaid  when  notice  of  the  judgment  was  given,  and 
afterwards  the  purchaser  paid  off  the  mortgage,  and  took 
a  surrender  of  the  terni([),  upon  a  bill  filed  by  the  judg- 
ment   creditor,    the  Vice-Chancellor    held,  that    as    the 
greater  part  of  the  purchase-money  was  paid,  and  the  rest 
secured  by  the  term  when  the  notice  was  given,  the  judg- 
ment creditor  had  no  remedy  in   equity  against  the  fee. 
The    purchaser  was  then    the  mortgagor    for  the  term. 
The  notice  therefore  was  nothing  more  than  notice  to  the 
mortgagor  that  a  person  to  whom   he  had  granted  a  legal 
term,  by  way  of  mortgage,  was  indebted  on  judgment ; 
but  a  judgment  is,  at  law,  no  lien  upon  a  legal  term  ;  and 
when  the  interest  of  the  debtor  is  legal,  a  judgment  is  no 
lien  in  equity.    Notwithstanding  this  judgment,  the  debtor 
could  well  assign  his  legal  term  at  his  pleasure.     If  there 
was  no  lien  upon  the  term  in   the   hands  of  the  debtor, 
there  could  be  no  lien  upon  the  term  in  the  hands  of  his 
assignee(/>). 

ip)  Forth  V.  The  Duke  of  Norfolk,  4  Madd.  503.  The  case  was 
heard  upon  appeal  before  Lord  Eldon,  who  called  for  further  papers. 
The  parties  agreed  to  be  bound  by  his  opinion. 


(I)  This  fact  appears  from  the  papers  in  the  cause. 

(*540) 


OF  SEARCHING  FOR  INCUMBRANCES. 


613 


(*)lt  seems  advisable  to  ask  the  vendor,  or  his  attorney, 
whether  there  are  any  incumbrances  which  do  not  appear 
on  the  abstract;  for  if  he  answer  in  the  negative,  the 
search  for  judgments  maybe  postponed  until  immediately 
before  the  execution  of  the  conveyance  ;  and  if  there  are 
any  judgments,  and  the  purchase  cannot  be  completed  on 
that  account,  the  purchaser  can  recover  all  his  expenses 
from  the  vendor(^).  It  should  seem,  how'ever,  that  the 
purchaser  would  equally  be  entitled  to  recover  the  ex- 
pense of  the  conveyance,  although  he  had  not  inquired 
after,  or  searched  for,  incumbrances  before  it  was  prepared, 
provided  that  he  had  examined  the  abstract  with  the 
deeds,  and  that  the  abstract  did  not  disclose  the  incum- 
bran  ces. 

A  purchaser  who,  at  the  time  of  his  contract,  is  seised 
of  the  legal  estate,  as  a  mortgagee,  need  not  search  for 
judgments  subsequently  to  the  mortgage,  for  an  equity  of 
redemption  is  not  within  the  clause  of  the  statute  of  frauds, 
which  will  shortly  come  under  our  consideration ;  and  it 
is,  therefore,  not  extendable(r)(I)(253).     And  as  the  pur- 

{q)   Richards  v.  Barton,  1  Esp.  Ca.  268  ;   vide  supra,  ch.  4. 

(r)  Lyster  v.  Dolland,  1  Ves.  jun.  431  ;  3  Bro.  C.  C.  478  ;  and  see 
Burdon  v.  Kennedy,  3  Atk.  739  ;  Scott  v.  Scholey,  8  East,  467 ;  Met- 
calf  V.  Scholey,  2  New  Rep.  461. 

(I)  JYoie.  An  equity  of  redemption  has  been  held  to  be  assets  under 
the  statute  of  frauds,  2  Freem.  115,  pi.  130  ;  although  the  determina- 
tion appears  not  to  have  been  acted  upon.  It  were  much  easier  to 
maintain  that  an  equity  of  redemption  is  extendible  under  the  statute. 
— JVote,  the  case  of  Freeman  v.  Taylor,  3  Keb.  307,  was  before  the 
statute. 


(253)  See  Pundevson  v.  Broxon,  1  Day,  93.  Willington  v.  Gale,  7 
Mass.  Rep.  138.  But  in  Massachusetts,  an  equity  of  redemption  is 
made  extendable  by  statute.  In  Pennsxjlvania,  a  judgment  is  a  lien  upon 
every  kind  of  equitable  interest  in  land,  vested  in  the  debtor  at  the  time 
of  the  judgment.  Cwkhvff  v.  Anderson,  3  Binn.  4.  But  see  Hurl 
V.  Reeves,  6  Hayw.  63, 

(*541) 


Q^Q  OF  SEARCHING  FOR  INCUMBRANCES. 

chaser  will,  by  the  contract,  acquire  equal  equity  with  the 
judgment  creditor,  and  has  already  got  the  legal  estate, 
his  title  cannot  be  impeached.  Some  gentlemen  of  emi- 
nence even  hold,  that  notice  of  judgments  entered  up  sub- 
sequently to  the  mortgage  will  not  affect  the  purchaser ; 
but  (*)it  is  conceived,  that  if  he  purchase  with  notice, 
either  express  or  implied,  of  any  judgment,  the  legal  estate 
will  not  protect  him  in  equity  against  the  judgment  credi- 
tor. The  judgment  is  a  lien  upon  the  estate  in  equity(5), 
and  confers  a  right  on  the  creditor  to  redeem  a  prior  mort- 
gage or  other  incumbrance(/)(254).  And  by  the  first 
principles  of  equity,  a  purchaser,  with  notice  of  any  in- 
cumbrance, is  bound  by  it  in  the  same  manner  as  the  per- 
son was  of  whom  he  purchased(M)(255).  And,  indeed, 
it  has  been  expressly  decided,  that  a  mortgagee,  purchas- 
ing the  equity  of  redemption,  is  bound  by  judgments  of 
which  he  has  notice,  although  they  were  entered  up  sub- 
sequently to  the  mortgage(a:). 

This  doctrine  prevailed  before  the  statute  of  frauds, 
and  has  been  the  observed  rule  of  equity  ever  since ;  and 

(s)  Churchill  v.  Grove,  Nels.  Cha.  Rep.  89  :   1  Cha.  Ca.  35. 
(0  See  2  Cha.  Rep.  180. 
(m)  See  Anon.  2  Ventr.  361,  No.  2. 

(.r)  Greswold  v.  Marsham,  2  Cha.  Ca.  170  ;  Crisp  v.  Heath,  7  Vin. 
Abr.  62,  (E).  pi.  2.      Tunstall  v.  Trappes,  2  Sim.  286. 

(254)  "A  legal  priority  will  be  preserved  in  Chancery."  Codwise  v. 
Gelston,  10  Johns.  Rep.  622.  Per  KENT.  In  Virginia,  the  lien  of 
a  judgment  upon  the  lands  of  the  party,  relates  back  to  the  commence- 
ment of  the  term  at  which  it  was  rendered.  J\lutual  Ins.  Soc.  v.  Stan- 
nard,  4  Munf.  639 — 642.  See  Winston  v.  Johnson's  Exrs.  2  Munf.  305. 
But  in  JYorth  Carolina,  a  judgment  is  a  lien  upon  lands  only  from  the 
time  it  is  pronounced.  Den  v.  Hill,  1  Hayw.  72,  96.  Or  from  the 
teste  of  the  ji.  fa.   1  Hayw.  99,  100. 

(255)  A  verbal  communication  by  a  stranger  to  a  purchaser,  before 
he  receives  a  conveyance,  that  a  claim  to  the  land  exists,  is  sufficient 
notice  to  charge  him  with  the  equity  of  such  claim.  Currens  v.  Hart, 
Hardin,  37.     And  see  Wadsworth  v.  Wendell,  5  Johns.  Ch.  Rep.  224. 

(*542) 


OF  SEARCHING  FOR  INCUMBRANCES. 


617 


it  is  said,  that  previously  to  the  statute  of  frauds,  a  judg- 
ment creditor  was  in  like  manner,  and  upon  the  same 
principles,  relievable  in  equity  against  a  conveyance  to 
trustees.  And  by  the  tenth  section  of  that  statute  it  is 
enacted,  tliat  execution  may  be  delivered  upon  any  judg- 
ment, statute,  or  recognizance,  of  all  such  lands,  &c.  as 
any  other  person  or  persons  shall  be  seised  or  possessed 
of  in  trust  for  him  against  whom  execution  is  so  sued,  in 
the  same  manner  as  if  he  had  been  seised  of  such  lands, 
&c.  of  such  estate  as  they  be  seised  of  in  trust  for  him  at 
the  time  of  the  execution  sued,  and  shall  be  held  discharged 
of  the  incumbrances  of  the  trustee.  Upon  the  construc- 
tion of  this  statute  it  hath  been  holden,  that  if  a  trustee 
has  conveyed  the  lands  before  execution  sued,  though  he 
was  seised  in  trust  for  the  defendant  at  the  time  of  the 
(*)judgment,  the  lands  cannot  be  taken  in  execution(y). 
Now  it  is  clear,  that  where  the  fee  is  in  trustees,  the  pur- 
chaser would  not  be  bound  by  any  judgment,  upon  which 
no  writ  of  execution  had  been  sued,  and  of  which  he  had 
not  notice.  But  here,  as  in  the  preceding  case,  the  pur- 
chaser, it  is  contended  in  practice,  cannot  be  advised  to 
rely  on  the  legal  estate  in  the  trustees,  where  he  has 
notice  of  any  subsequent  judgments.  Mr.  Powell(2:), 
however,  entertained  a  contrary  opinion.  After  showing 
that  trust-estates  can  only  be  taken  in  execution  by  virtue 
of  the  statute  of  frauds,  he  contends,  that  where  the  legal 
estate  is  in  a  trustee,  notice  to  a  purchaser  of  judgments 
is  immaterial,  because  the  lands  are  not  liable  at  law ; 
and,  as  equity  follows  the  law,  no  relief  would  be  granted 
against  the  purchaser,  through  the  medium  of  a  court  of 
equity. 

If  the  case  of  Hunt  v.  Coles  be  an  authority,  it  must 

iy)  Hunt  V.  Coles,  Com.  226.  See  Higgins  r.  The  York  Buildings 
Company,  2  Atk.  137  ;  Harris  v.  Pugh,  4  Bingh.  335  ;  12  Moo.  577, 
S.  C. 

(s)  2  Mort.  4th  edit.  p.  608. 

VOL.  I.  78  (*543) 


gjg  OF  SEARCHING  FOR  INCUMBRANCES. 

be  acknowledged  that  trust-estates  cannot  be  affected  by 
any  execution  sued  upon  a  judgment  after  the  trustee  has 
conveyed  away  the  lands.  But  admitting,  that  before 
the  statute  of  frauds,  an  incumbrancer  might  be  relieved 
against  a  conveyance  to  trustees,  it  should  seem  to  follow, 
that  the  same  equity  must  still  be  administered.  It  were 
difficult  to  contend,  that  the  statute  has  concluded  the 
equitable  relief.  The  registering  acts  expressly  enact, 
that  a  purchaser  shall  not  be  bound  by  instruments,  &c. 
unless  they  are  registered,  notwithstanding  which  equity 
will  fasten  on  the  conscience  of  a  purchaser  who  bought 
with  notice  of  any  unregistered  incumbrance ;  and  there 
is  surely  greater  reason  to  hold,  that  the  jurisdiction  of 
equity  shall  not  be  barred  by  a  statute  which  merely 
(*)gives  a  partial  remedy  at  law  without  interfering  with 
the  equitable  rights  of  the  parties. 

The  difficulty  in  the  way  of  the  relief  would  be,  that  no 
case  can  be  found,  after  the  most  diligent  search,  in  which 
a  judgment  creditor  has  been  relieved  against  a  convey- 
ance to  trustees,  w^here  a  purchaser  had  subsequently 
acquired  the  legal  estate.  The  author  formerly  thought 
that  equity  would  relieve  against  the  purchaser,  if  he 
bought  with  notice ;  but  his  confidence  in  that  opinion 
has  been  shaken  by  the  want  of  authority  in  support  of 
it.  Nothing  but  a  judicial  determination  can  set  the 
doubt  on  this  point  at  rest(a). 

The  statute  only  extends  to  clear  and  simple  trusts  for 
the  benefit  of  the  debtor.  Therefore  a  trustee  of  a  term 
of  years  for  securing  an  annuity,  and  subject  thereto  for 
the  grantor,  is  not  a  trustee  within  the  statute(6). 

Where,  however,  an  estate  is  conveyed  to  trustees  upon 
trust  to  sell,  and  pay  debts,  &c.  and  to  pay  the  surplus  of 
the  monies  to  arise  by  sale  to  the  grantor,  and  the  receipts 

(a)    See  Steele  v.  Phillips,  1  Beatty,  193. 
(6)   Doe  V.  Greeiihill,  4  Barn.  &  Aid.  684. 
(*544) 


Ot'  SEARCHING  FOR  INCUMBRANCES.  gjQ 

of  the  trustees  are  made  sufficient  discharges  to  the  pur- 
chasers ;  the  better  opinion  is,  that  the  purchaser  is  not 
bound  by  any  subsequent  judgments  of  which  he  has 
even  express  notice.  Great  difference  of  opinion  has 
prevailed  in  the  Profession  on  this  point.  Those  who  hold 
that  a  purchaser  is  bound  by  such  judgments,  rightly 
compare  the  interest  of  the  grantor  in  the  estate  to  an 
equity  of  redemption.  But  as  such  an  interest  is  not 
extendible,  the  debt  of  the  judgment  creditor  can  only, 
it  should  seem,  affect  the  suplus  monies  in  the  hands  of 
the  trustees,  and  is  not  a  lien  on  the  estate  itself.  When 
the  receipts  of  the  trustees  are  once  made  a  discharge  to 
the  purchaser,  there  surely  is  not  any  equity  in  a  subse- 
quent (*)incumbrancer  to  require  the  purchaser  to  see  to 
the  application  of  any  part  of  the  money.  The  creditor 
stands,  as  to  his  debt,  in  the  place  of  his  debtor,  and  con- 
sequently is  entitled  to  have  his  debt  discharged  out  of 
the  surplus  monies  in  the  hands  of  the  trustees  ;  but  he 
cannot,  it  is  conceived,  claim  a  higher  equity  ;  the  con- 
trary rule  would  be  productive  of  infinite  inconvenience. 
In  Lodge  v.  Lyseley(c),  a  father  tenant  for  life  and  his 
son  tenant  in  tail  in  remainder  joined  in  conveying  the 
estate  to  trustees  to  sell,  and  to  pay  30,000/.,  part  of  the 
purchase-money,  to  the  father,  and  the  residue  to  the  son. 
The  trustees,  whose  receipts  were  made  good  discharges, 
contracted  to  sell  the  estate,  and  judgments  were  after- 
wards entered  up  against  the  father.  The  Vice  Chancellor 
held  that  the  purchaser  could  not  be  affected  by  the  judg- 
ments. His  Honor  observed,  that  by  the  conveyance  to 
which  the  father  and  son  were  parties,  the  son  acquired 
a  clear  right  in  equity  to  have  the  trusts  expressed  in  the 
conveyance  performed,  because  he  amalgamated  his  re- 
mainder in  tail  (which  was  converted  into  a  fee  by  the 
recovery)  with  the  father's  life  estate :  and  it  was  agreed 

(c)  4  Sim.  70. 

(*545) 


620 


OF  SEARCHING  FOR  INCUMBRANCES. 


between  them  that  there  should  be  an  immediate  sale  of 
the  whole,  and  a  division  made  of  the  purchase-money. 
Part  was  to  be  applied  in  payment  of  the  father's 
debts,  and  30,000/.  was  then  to  be  paid  to  the  father, 
and  the  clear  residue  was  then  to  be  paid  to  the  sons  ; 
therefore  as  soon  as  the  conveyance  was  executed  the  son 
had  a  clear  right  to  file  a  bill  against  the  father  and  the 
trustees  for  a  sale,  according  to  the  trusts  expressed  ;  and 
inasmuch  as  part  of  the  trust  is,  that  the  trustees  should 
sell  and  give  releases  to  the  purchaser,  there  could  be  no 
execution  of  the  trusts  without  allowing  the  trustees  to 
receive  the  money  and  give  their  receipts,  which  were  to 
(*)discharge  the  purchasers.  This  case,  he  observed,  bore 
no  resemblance  to  the  cases  mentioned.  The  case  that  it 
most  resembled  was  that  which  was  submitted  for  Mr. 
Serjeant  Hill's  opinion(c^).  But  even  in  that  case  he 
should  not  have  given  the  opinion  which  the  learned 
Seaijeant  did,  because  it  appeared  to  him  that  from  the 
time  the  party  entered  into  binding  contracts  to  sell  his 
estates  to  purchasers,  he  not  having  judgments  against 
him  at  that  time,  the  purchasers  had  a  right  to  file  a  bill 
against  him,  and  have  the  legal  estate  conveyed,  and  if 
he  had  subsequently  confessed  a  judgment,  that  judgment 
never  could  have  impeded  the  progress  of  the  legal  estate 
to  them.  As  to  the  case  of  Forth  v.  The  Duke  of  Norfolk, 
no  decision  was  given  there  on  the  point  which  might 
have  arisen,  because  the  chattel  interest  had  ceased  to 
have  existence.  His  notion  was,  that  it  was  of  the  essence 
of  the  trusts,  which  the  son,  as  the  purchaser,  had  a  right 
to  have  performed,  that  the  trustees  should  convey  the 
legal  estate,  and  give  receipts  for  the  purchase-money. 
His  opinion  was  so  clear,  that  he  did  not  think  that  he 
ought  to  allow  the  purchaser  to  say  that  there  was  a 
doubt  on  the  point. 

(d)   See  the  opinion  in  4  Madd.  506,  n. 
(*546) 


OF  SEARCHING  FOR  INCUMBRANCES.  Q2\ 

As  a  mortgagee  seised  or  possessed  of  a  legal  estate 
need  not  search  for  judgments,  so  a  purchaser,  who  ob- 
tains an  assignment  of  a  legal  subsisting  term  of  j^ears 
in  trust  to  attend  the  inheritance,  may  dispense  with  a 
search  for  judgments,  &c.  if  he  be  assured  that  notice 
of  any  incumbrance  cannot  be  proved  on  him  or  any  of 
his  agents.  But  as  notice  may  be  inferred  from  very 
slight  circumstances,  a  purchaser  cannot  be  advised  in 
any  case,  or  under  any  circumstances,  to  dispense  with 
the  usual  searches.  And  even  where  he  does  rely  on  a 
term  of  years,  yet  if  it  be  recently  created,  incumbrances 
(*)should  be  searched  for  previously  to  the  creation  of  the 
term. 

It  is,  I  believe,  usual  to  search  for  judgments  against 
a  vendor,  only  from  the  time  he  purchased  the  estate  ;  but 
this  practice  is  not  correct,  because  judgments  bind  after- 
purchased  lands,  and  will  consequently  affect  such  lands 
even  in  the  hands  of  a  purchaser(e)(256). 

(e)  See  Sir  John  de  Moleyn's  case,  30  E.  324  a  ;  1  Ro.  Abr.  S92, 
pi.  14,  16 ;  42  E.  3,  11  a  ;  42  Ass.  pi.  17  ;  2  H.  4,  8  b.  pi.  42  ;  14  a, 
pi.  6;  2  Ro.  Abr.  472,  (P.)  pi.  3  ;  Shep.  Prac.  Couns.  305  ;  Hickford 
V.  Machin,  Winch,  84,  per  Jones,  J.  ;  and  Brace  v.  Duchess  of  Marl- 
borough, in  2d  Resol.  2  P.  Wms.  492. 

(256)  In  Colhoun  v.  Snyder,  6  Binn.  138,  Yeates,  J.  says,  "  The 
note  subjoined  to  Sugden,  has  enumerated  some  other  cases,  none  of 
which,  upon  inspection,  will  be  found  to  warrant  the  doctrine  in  the  ex- 
tent laid  down."  He  also  said,  that  Sir  John  De  JMoleyn^s  case  "  not 
only  does  not  support  the  inference  of  the  abridgers,  but  is  directly  op- 
posed thereto."  p.  139.  The  decision  in  Colhoun  v.  Snyder,  was  upon  the 
very  point  ;  and  it  was  held,  that  judgments  were  not  a  lien  upon  after 
purchased  lands,  if  aliened  before  execution.  See  Rundle  v.  Ehvein,  6 
Binn.  136.  in  note.  But  in  JVew-York,  a  different  rule  has  been  adopt- 
ed. "  It  cannot  be  doubted,  that  a  judgment  will  attach  on  lands,  of 
which  the  judgment  debtor  becomes  seised  at  any  time  posterior  to  the 
judgment."  Stow  v.  Tifft,  15  Johns.  Rep.  464  Per  Spencer, 
J.  And  an  elder  judgment  is  a  lien  upon  lands,  in  the  hands  of  the 
purchaser,  sold  under  a  fi.  fa.  issued  upon  a  junior  judgment.     Ridge' 

(*547) 


622 


OF  SEARCHING  FOR  INCUMBRANCES. 


Judgments  do  not  bind  leasehold  estates  till  writs  of 
execution  are  taken  out  upon  them,  and  delivered  to  the 
sheriff(/).  And  yet,  upon  purchase  of  a  leasehold  es- 
tate, judgments  must  be  searched  for  ;  because  the  she- 
riff will  not  permit  his  office  to  be  searched  for  any 
writ  of  execution  which  may  have  been  delivered  there, 
lest  the  purposes  of  the  writ  should  be  defeated  by  the 
party  against  whom  it  is  issued  absconding,  or  removing 
his  goods.  Therefore,  although  the  judgment  will  not 
of  itself  bind  the  leasehold  estate,  yet  the  purchaser 
cannot  safely  complete  his  contract,  where  he  discovers 
a  judgment,  because  he  cannot  be  satisfied  that  an  exe- 
cution issued  upon  it  has  not  been  lodged  with  the  sheriff. 
When  we  consider  how  many  valuable  leasehold  estates 
are  daily  brought  into  the  market,  we  shall  perhaps  think 
that  the  Legislature  would  do  well  to  enact,  that  writs  of 
execution  intended  to  bind  leasehold  estates  shall  be 
docketed  in  like  manner  as  judgments,  and  that  where 
the  estate  lies  in  a  register  county,  they  shall  be  register- 
ed. 

But  old  judgments  existing  against  a  former  owner  of 
(*)a  leasehold  estate  upon  which  it  does  not  appear  that 
execution  issued,  will  not  be  considered  an  objection  to 
a  seller's  title(g). 

Where  only  an  equity  of  redemption  of  a  term  is  pur- 
chased, the  purchaser  will  not  be  affected  by  even  an 
execution  lodged,  of  which  he  had  not  notice,  foj'  such  an 
interest  is  not  extendible  under  the  statute  of  frauds,  and 
certainly  the  mere  delivery  of  the  writ  to  the  sheriff  would 
not  be  implied  notice  to  a  purchaser(A). 

(/)  Vide  post.  Ch.  16. 

{g-)  Caustonr.  Macklew,  2  Sim.  242  ;  Williams  v.  Craddock,  4  Sim. 
313. 

{h)  See  1  Yes.  jun.  431  ;  3  Atk.  739. 


ley^s  Exr.  v.  Gartrell,  3  Har.  &  M'Hen.  460.     See  Sanford  v.  Koosa, 

12  Johns.  Rep.  162. 

C'^548) 


OF  SEARCHING  FOR  INCUMBRANCES.  Q23 

These  observations,  respecting  judgments,  must  not  be 
closed  without  observing,  that  if  a  person  purchase  part 
of  an  estate  subject  to  a  judgment,  and  the  residue  of  the 
estate  remain  in  the  hands  of  the  conusor,  or  descend  to 
his  heir,  and  execution  is  sued  only  against  the  original 
debtor  or  his  heir,  he  shall  not  have  contribution  against 
the  purchaser,  and  the  consideration  of  the  purchase  is 
not  material  in  these  cases.  But  if  execution  be  sued 
against  the  purchaser  only,  he  shall  have  contribution 
against  the  person  seised  of  the  residue  of  the  estate, 
whether  they  acquired  it  by  descent  or  purchase(?'). 

Sir  Edward  Coke  observes(y),  that  when  it  is  said  that 
if  one  purchaser  be  only  extended  for  the  whole  debt, 
that  he  shall  have  contribution  ;  it  is  not  thereby  in- 
tended that  the  others  shall  give  or  allow  to  him  any 
thing  by  way  of  contribution ;  but  it  ought  to  be  in- 
tended, that  the  paity  w ho  is  only  extended  for  the  whole, 
may,  by  audita  querela,  or  scire  facias,  as  the  case  re- 
quires, defeat  the  execution,  and  compel  the  conusor  to 
(*)sue  execution  of  the  whole  land  ;  so,  in  this  manner, 
every  one  shall  be  contributory,  hoc  est,  the  land  of  every 
terre-tenant  shall  be  equally  extended. 


II.  To  resume  the  consideration  of  the  cases  in  which 
incumbrances  should  be  searched  for : 

If  the  estate  lie  in  a  register  county(I),  the  registrar's 
office  should  be  searched,  for  the  purpose  of  ascertaining 
not  only  that  the  estate  is  free  from  incumbrances,  but 
also,  that  the  title-deeds  are  duly  registered ; — the  estate 
may  be   lost   by  neglecting  to  do   so.     And   if  it  appear 

{{)  Sir  William  Herbert's  case,  3  Co.  lib.  See  the  distinctions 
taken  in  Blakeston  f.  Martyn,  1  Jo.  90;  and  see  Hartly  v.  O'Flaherty, 
1  Beatty,  61. 

0)  3  Co.  14  b. 

(I)  For  some  observations  on  the  registry  acts,  see  infra,  eh.  16. 

(*549) 


024,  OF  SEARCHING  FOR  INCUMBRANCES. 

that  any  deed  has  not  been  duly  registered,  the  vendor 
must  procure  it  to  be  registered  at  his  own  expense,  pre- 
viously to  the  completion  of  the  contract ;  although,  in- 
deed, it  sometimes  happens  that  an  instrument  not  being 
registered,  prevents  an  objection  being  made  to  the  title. 
To  give  an  instance  of  this,  let  us  suppose  a  man  to  have 
mortgaged  his  estate,  and  paid  off  the  money,  but  to 
have  neglected  to  take  a  re-conveyance.  Now,  in  this 
case,  if  the  mortgage  was  not  registered,  the  purchaser 
need  not  insist  upon  its  being  registered,  and  require  a 
re-conveyance  from  the  mortgagee  ;  because,  as  the  deed 
was  not  registered,  the  morgagee  did  not  acquire  the 
legal  estate,  or  if  he  did,  would  cease  to  have  it  by  the 
registry  of  the  conveyance  to  the  purchaser  ;  and,  being 
paid  off,  he  has  of  course  no  equity.  So  where  a  partial 
interest  in  an  estate  is  devised  to  the  heir  at  law,  with 
a  power  of  leasing,  and  he  grant  a  lease  not  authorized 
by  his  power,  the  lease  may,  in  some  cases,  be  sustained 
both  at  law  and  in  equity,  in  case  the  will  was  not  regis- 
tered according  to  the  act.  This,  however,  is  a  mode  of 
making  a  title  to  which  necessity  only  should  compel  us 
to  resort. 

(*)It  is  very  seldom  that  wills  are  registered  ;  but  a 
purchaser  from  a  devisee  should  not  complete  his  contract 
till  the  will  is  duly  registered  ;  for  should  any  person  pur- 
chase of  the  heir  at  law  bona  fide,  and  without  notice  of 
the  will,  and  register  his  conveyance  before  the  registry 
of  the  will,  he  would  be  preferred  to  the  purchaser  from 
the  devisee(A;). 

But  if  the  vendor  be  both  heir  at  law  and  devisee,  the 
non-registry  of  the  will  is  immaterial ;  for  if  he  sell  to  any 
subsequent  purchaser,  it  must  be  either  in  the  character 
of  heir  at  law,  or  in  the  character  of  devisee.  If  he  sell 
in  this  character,  the  second  purchaser  must  have  notice 

(A;)   See  JoUand  v.  Stainbridge,  3  Ves.  jun.  478. 
(*550) 


OF  SEAUCHINO  f'OR  INCUMBRANCKS.  gOX 

of  the  will  ;  if  he  coutrnct  in  that,  the  first  purchaser  has 
already  j)roriired  the  legal  estate. 

So  it  seems  clear,  that  if  the  vendor  claim  a  leasehold 
estate,  either  as  executor  or  legatee,  the  purchaser  need 
not  insist  upon  the  testator's  will  being  registered,  because 
no  subsequent  purchaser  can  procure  a  title  without  notice 
of  the  will  ;  and  it  may  be  remarked,  that  letters  of  ad- 
ministration are  never  rc2;istered,  and  they  seem  to  stand 
upon  the  same  principle  as  wills  of  leasehold  estates. 

If  a  purchaser  be  already  seised  of  the  legal  estate,  as 
if  he  be  mortgagee  in  fee,  and  has  contracted  for  the 
equity  of  redem])tion,  it  is  not  actually  necessary  to  search 
the  register  if  he  be  assured  that  notice  cannot  be  proved 
either  on  himself,  or  on  any  one  concerned  for  him  ;  be- 
cause the  mere  registration  of  deeds,  as  we  shall  hereafter 
see,  is  not  notice  to  a  purchaser  seised  of  the  legal  estate 
previously  to  the  purchase,  and  he  will,  therefore,  be  en- 
titled to  hold  against  any  puisne  incumbrance  of  which  he 
had  not  notice. 

Where  the  estate  lies  in  the  county  of  Middlesex,  judg- 
ments need  only  be  searched  for  at  the  registrar's  office, 
(*)as  judgments  bind  estates  in  that  county  only  from  the 
time  they  are  memorialized  ;  but  this  is  not  the  case  in  the 
county  of  York;  for  in  the  North  Riding,  any  judgment 
registered  within  twenty  days  after  the  acknowledgment 
or  signing  of  it,  is  available  in  the  same  manner  as  if  it 
had  been  registered  on  the  day  it  was  acknowledged  or 
signed(/)  ;  and  in  the  East  and  West  Ridings,  and  in 
Kingston-upon-Hull,  thirty  days  are  allowed  for  the  re- 
gistering of  judgments(m).  Therefore,  where  the  estate 
lies  in  York,  or  Kingston-upon-Hull,  recent  judgments 
must  be  searched  for  in  the  proper  courts. 

It  has  already   been  observed,  that  judgments  do  not 

(/)  8  Geo.  II.  c.  6,  s.  33. 

(»Ji)   6  Anne,  c.  18,  s.  11  ;   6  Anne,c.  35,  s.  28. 

VOL.   I.  79  (*561) 


Q2Q  OF  SEARCHING  FOR  INCUMBRANCES. 

bind  leasehold  estates  till  delivery  of  a  writ  of  execution 
to  the  sheriff.  Writs  of  execution  upon  judgments  in- 
tended to  affect  leasehold  estates  in  a  register  county, 
were  formerly  never  registered(w).  From  the  present 
practice  of  registering  writs  of  execution,  it  may  perhaps 
be  concluded  that  they  ought  to  be  registered  ;  but  the 
registry  of  them  seems  causus  omissus  out  of  the  statutes 
for  registry  ;  and  therefore,  upon  the  purchase  of  a  lease- 
hold estate  in  a  register  county,  not  only  the  register,  but 
also  the  proper  courts,  should  be  searched. 

The  register  ought  to  be  searched  immediately  before 
the  execution  of  the  conveyance,  for  the  same  reason  that 
the  search  for  judgments  should  be  delayed  till  the  last 
moment. 

And  lastly,  since  grants  of  annuities  have  become  so 
prevalent,  and  can  be  searched  for,  it  is  the  duty  of  the 
purchaser's  solicitor  to  search  for  annuities.  In  a  register 
county  they  need  only  be  searched  for  at  the  registrar's 
office. 

(*)It  may  be  useful  to  observe,  that  if  a  purchaser  is 
damnified  by  his  solicitor  neglecting  to  search  for  incum- 
brances, it  is  clear  that  he  may  recover  at  law  against  the 
solicitor,  for  any  loss  occasioned  by  his  negligence(o)(257). 
But  an  attorney's  negligence  cannot,  perhaps,  in  any  case, 
be  set  up  as  a  defence  to  an  action  by  him  for  the  busi- 
ness done,  although  it  should  seem  that  if  there  is  a  cross- 
action  by  the  client  against  the  attorney,  the  Court  will, 

(»)    Vide  infrUy  ch.  16* 

(o)  Brooks  V.  Day,  2  Dick.  672  ;  Forshall  v.  Coles,  7  Yin.  Abr.  54, 
pi.  6,  MS.  ;  and  Appendix,  No.  20;  Green  r.  Jackson,  Peake's  Ca. 
236  ;  Ireson  v.  Pearman,  5  Dowl.  &  Ryl.  687.,  See  Baikie  v.  Chand- 
less,  3  Camp.  Ca.  17. 


(267)  See  Huntington  v.  Riimdell,  3  Day,  390.  Smede^s  Exrs.  v. 
Elniendorf,  3  Johns.  Rep.  185.  Dearborn  v.  Dearborn,  15  Mass. 
Rep.  316. 

(*552) 


OF  RELIEF  IN  RESPECT  OF  INCUMBRANCES.  Qdyn 

upon  application,  stay  the  execution  in  the  action  by  the 
attorney  pending  the  other^p). 

So  if  tlie  chief  clerk,  whose  duty  it  is  to  enter  up  and 
docket  judgments,  neglect  to  do  so,  by  which  a  purchaser 
who  has  made  the  proper  searches,  sustains  any  loss,  he, 
the  purchaser,  has  a  remedy  against  the  clerk  by  an  action 
on  the  case(9')(258).  And  any  person  who  is  damnified 
by  the  neglect  of  the  registrar  of  either  of  the  registering 
counties,  may  bring  an  action  against  him,  in  which  he 
will  recover  treble  damages  and  costs  of  suit,  by  virtue  of 
the  registering  acts(I). 

(*)SECTION  VI. 
Of  Relief  from  Incumbrances. 


Having  considered  in  what  instances  incumbrances 
should  be  searched  for,  let  us  now  inquire,  1st,  In  what 
cases  a  purchaser  may  detain  the  purchase-money,  if  in- 
cumbrances are  discovered  previously  to  the  payment  of 
it :  and  2dly,  To  what  relief  he  is  entitled,  if  evicted 
after  the  money  is  actually  paid ;  and  these  inquiries  will 
involve  the  consideration  of  the  cases  in  which  a  pur- 

{p)  Templer  v.  M'Lachlan,  2  New  Rep.  136. 
{q)   Douglas  V.  Yallop,  2  Burr.  722. 

(I)  By  the  registering  acts  for  Scotland,  the  remedy  is  extended 
against  the  heirs  of  the  clerk,  although  no  action  shall  have  been  com- 
menced in  the  clerk's  life-time.     1  Ersk.  Inst.  B.  II.     T.  III.  s.  42. 

(258)  See  Russel  v.  Clayton,  3  Call,  41 — 43.  Commonwealth  v. 
Walberi,  6  Binn.  292.     Work  v.  Hoofnaglc,  1  Yeates,  506. 

(*563) 


QC)0  OF  RELIEF  IN  RESPECT  OF 

chaser  will  be  relieved  in  respect  of  defects  in  the  title  to 
the  estate. 

1.  First  then,  1.  Where  an  incumbrance  is  discovered 
previously  to  the  execution  of  the  conveyance,  and  pay- 
ment of  the  purchase-money,  the  vendor  must  discharge 
it,  whether  he  has  or  has  not  agreed  to  covenant  against 
incumbrances,  before  he  can  compel  payment  of  the  pur- 
chase-money (r)(259). 

2.  But  if  a  purchaser,  before  executing  the  articles,  has 
notice  of  an  incumbrance  ?67izc/t-  is  contingent^  and  it  is  by 
the  articles  agreed  that  the  vendor  shall  covenant  against 
incumbrances,  the  purchaser  has  entered  into  them  with 
his  eyes  oj)en,  has  chosen  his  own  remedy,  and  equity 
will  not  assist  him(5) ;  and  he  cannot,  therefore,  detain 
any  part  of  the  purchase-money. 

(*)II.  1.  Although  the  purchaser  has  paid  the  money, 
yet  if  he  is  evicted  before  any  conveyance  is  prepared  and 
executed,  or  before  the  conveyance  is  executed  by  all  the 
necessary  parties,  he  may  recover  the  purchase-money 
in  an  action  for  money  had  and  received,  although  the 
intended  covenants  do  not  extend  to  the  title  under  which 
the  estate  was  recovered,  and  he  may  have  taken  posses- 
sion of  the  estate(0(I)(260). 

()•)  Anon.  2  Freem.  106  ;  Yane  v.  Lord  Barnard,  Gilb.  Eq.  Rep.  6  ; 
Serj.  Maynard's  case,  2  Freem.  1  ;  3  Svvanst.  651  ;  and  see  1  Ves. 
88  ;   2  Ves.  894  ;  2  Yes.  jun.  441  ;   and  4  Bro.  C.  C  394. 

(s)  Yane  v.  Lord  Barnard,  ubi  nuij. 

(t)  Cripps  V.  Reade,  6  Term  Rep.  606  ;  Matthews  v.  Hollings, 
Woodfall's  Law  Land.  35,  cited  ;  Johnson  v.  Johnson,  3  Bos.  &  Pull. 
162;  and  see  Awbry  r.  Keen,  1  Yern.  472;  and  see  Brig's  case, 
Palm.  364;  Simmons  v.  Hunt,  1  Marsh.  156;  Jones  v.  Ryde,  5 
Taunt.  488. 

(I)  In  Robinson  v.  Anderton,  Peake's  Ca.  94,  Lord  Kenyon  permit- 
led  a  purchaser  o^  fixtures  in  a  house  which  were  scheduled  in  the  orig- 

(259)  See  Witherspoon  v.  Anderson's  Exrs.  3  Des.  246. 

(260)  See  Judson  v.  JVass,  11  Johns.  Rep.  525,  527.      Chde  v.  Ro- 
(*554) 


INCUMBRANCES.  g29 

2.  But  if  the  conveyance  has  been  actually  executed 
by  all  the  necessary  parties,  and  the  purchaser  is  evicted 
by  a  title  to  which  the  covenants  do  not  extend,  he  can- 
not recover  the  purchase-money  either  at  \3.\\(ii),  or  in 
equity(a:)(261). 

This  was  Serjeant  Maynard's  case(^).  The  plaintiff 
exhibited  his  bill  to  be  repaid  600/.  Sir  Edward  Mose- 
-ley  devised  certain  Leicestershire  lands  unto  his  wife, 
(afterwards  Lady  North,)  for  life,  remainder  to  the  first, 
second,  third,  fourth,  fifth,  and  tenth  son  of  his  sister 
Maynard,  (wife  of  Joseph  Maynard,  the  Serjeant's  eldest 
son.)  in  tail,  remainder  to  Nicholas  Moseley,  the  father 
of  Oswald,  for  life,  remainder  to  Oswald  Moseley  in  tail, 

(m)  See  Cripps  t\  Reade  ;  Johnson  v.  Johnson  ;  and  Bree  v.  Hol- 
bech,  Dougl.  654. 

(ar)  Serjeant  Maynard's  case,  2  Freem.  1  ;  3  Svvanst.  651  ;  Anon. 
2  Freem.  106. 

(y)  3  Swanst.  651. 

inal  lease,  and  belonged  to  the  landlord,  to  recover  the  purchase-money, 
although  the  person  who  sold  them  was  an  under-tenant,  and  had 
himself  ignoranlly  paid  for  the  fixtures. 

bisons,  2  Johns.  Rep.  595.  Gillet  v.  JMaynard,  5  Johns.  Rep.  85. 
Van  Eps  v.  Corporation  of  Schenectady,  12  Johns.  Rep.  436.  Shear- 
er V.  Fowler,  7  Mass.  Rep.  31.  Ellis  y.  Hoskins,  14  Johns.  Rep.  363. 
Casxcell  V.  Black  River  J\lanufactvring  Co.  14  Johns.  Rep.  453. 

(261)  See  Hoives  v.  Barker,  3  Johns.  Rep.  506.  Mbotl  v.  Men,  2 
Johns.  Ch.  Rep.  523.  Frost  v.  Raymond,  2  Caines'  Rep.  188.  M- 
hott  V.  .Men,  2  Johns.  Ch.  Rep.  623.  Per  Kent.  Gotiverneur  v.  Elmen- 
dorf,  5  Johns.  Ch.  Rep.  79. 

Where  the  vendor  sells  land  with  warranty,  to  hold  from  the  death  of 
the  grantor,  no  action  will  lie  to  recover  back  the  money  paid.  Thus, 
in  Wallis  r.  Wallis,  4  Mass,  135,  Parsons,  C.  J.  said,  '  The  most  that 
can  be  urged  for  the  plaintiff  is,  that  nothing  passed  by  the  deed,  as  it 
was  intended  to  convey  an  estate  infuturo  ;  but  he  voluntarily  paid  his 
money,  and  took  a  covenant  from  the  grantor,  that  after  his  death,  the 
grantee  and  his  heirs  should  have  the  land.  But  the  plaintiff  is  mistak- 
en in  his  construction  of  the  deed  ;  for  by  the  covenant  to  stand  seised 
to  uses  the  conveyance  can  be  effected. 


630 


OF  RELIEF  IN  RESPECT  OF 


with  other  remainders  over,  and  died  in  October  1665. 
The  Serjeant  goes  down  into  Lancashire,  peruses  all  the 
writings,  (makes  agreements  with  Mr.  Edward  Moselej, 
on  behalf  of  his  son,  not  to  contest  the  will,  and  to  dis- 
charge a  lease  for  eleven  years,  and  thereupon  hath 
10,000/.  debt  secured  by  judgment,  all  which  agreements 
his  son  flies  off  from,  and  tries  the  will,  &c.)  and  perceiv- 
ing (*)that  if  the  will  stood,  (as  he  believed  it  would  do, 
having  examined  all  the  witnesses  upon  the  place,)  then 
it  would  be  in  the  power  of  my  Lady  North,  by  joining 
with  Nicholas  and  Oswald,  to  bar  all  the  contingent 
remainders  to  his  daughter's  children,  who  at  that  time 
had  none,  and  so  the  Leicestershire  lands,  worth  600/. 
per  annum,  would  be  lost  :  In  December  1665  comes  to 
an  agreement  with  Nicholas  and  Oswald  to  buy  their 
remainder  or  possibility  in  the  Leicestershire  lands  for 
600/.,  and  pays  it  down ;  and  the  manner  of  the  further 
assurance  was  to  be  thus  :  Nicholas  and  Oswald  were  to 
procure  the  Lady  North  (without  whom  it  could  not  be 
done)  to  join  with  them  in  a  common  recovery  before  the 
end  of  three  years  ;  and  to  secure  this,  Nicholas  and 
Oswald  gave  a  bond  of  1,200/.  to  the  Serjeant,  condi- 
tioned, that  if  no  recovery  be  suffered  within  three  years, 
whereby  the  estates  of  Nicholas  and  Oswald  may  be 
sufficiently  barred,  then  upon  the  re-conveyance  of  the 
premises  to  repay  600/.  After  this,  Mrs.  Ann  Moseley 
sets  up  a  title  to  the  Leicestershire  lands  by  virtue  of  a 
will  of  Sir  Edward  Moseley's  father,  found  in  loose 
sheets  among  the  evidences,  and  supposed  to  be  sup- 
pressed by  the  son,  upon  which  title  she  exhibited  a  bill 
in  this  Court,  and  obtained  a  decree  for  the  Leicester- 
shire estate,  notwithstanding  which  eviction  the  recovery 
was  suffered  within  the  three  years  by  the  Lady  North 
and  Nicholas  and  Oswald  Moseley  in  due  form  ;  and  now 
the  Seijeant  demanded   the  600/.   in  equity,   because  no 

(*555) 


INCUMBRANCES, 


631 


re-conveyance  of  the  premises  could  be  made  within  three 
years,  in  regard  the  title  was  evicted,  and  the  recovery 
did  him  no  good.  But  Lord  Nottingham  dismissed  the 
bill. 

Lord  Nottingham,  in  delivering  judgment,  said  that 
the  cause  which  was  heard  before,  and  dismissed,  came 
now  to  be  re-heard  at  the  plaintiff's  importunity,  who 
(*)pressed  earnestly  for  a  decree,  but  he  continued  of  the 
same  opinion  in  substance,  and  caused  the  reasons  of  that 
opinion  to  be  specially  entered  by  the  registrar  in  manner 
following :  "  His  Lordship  declared,  that  as  this  Court 
suffers  no  man  to  over-reach  another,  so  it  helps  no  man 
who  hath  over-reached  himself  without  any  practice  or 
contrivance  of  his  adversary  ;  that  it  was  most  plain  in 
this  case  there  was  no  fraud  nor  concealment  in  the 
defendants  at  the  time  of  the  sale  of  their  remainders, 
but  all  things  were  more  open,  and  better  known  to  the 
plaintiff  than  they  were  to  the  defendants,  for  the  plaintiff 
had  been  upon  the  place  and  perused  the  evidence  of  the 
family,  and  the  defendants  did  not  solicit  the  plaintiff  to 
buy,  but  the  plaintiff  importuned  the  defendants  to  sell 
their  remainders,  and  had  reason  so  to  do,  for  otherwise, 
as  things  then  appeared  on  all  hands,  the  defendants, 
with  the  concurrence  of  the  Lady  North,  might  have 
disinherited  the  issue  male  to  be  begotten  on  Mrs.  May- 
nard  of  all  the  Leicestershire  estate,  worth  600/.  per 
annum.  Accordingly  the  plaintiff  covenants  with  the 
defendants  for  their  title  for  600/.,  which  was  much  short 
of  what  it  was  then  worth  in  all  appearance,  and  the 
plaintiff  draws  his  own  assurance,  and  pens  the  defea- 
sance of  that  bond,  upon  which  he  now  sues  in  equity  to 
have  back  the  600/.  and  interest,  by  which  very  bill  the 
plaintiff  admits  that  the  defendants  can  no  way  be  charged 
with  the  bond  at  law.  It  remains,  ergo,  to  be  considered 
what  grounds  there  are  to  charge  them  in  equity  ;  for  the 

(*556) 


632 


OF  RELIEF  IN  RESPECT  OF 


defendants,  who  made  no  corrupt  or  fraudulent  agree- 
ment at  first,  insist  upon  it  that  they  have  literally  per- 
formed that  agreement  which  they  made,  and  for  which 
they  took  their  money  ;  ergo,  that  the  defendants  should 
now  be  forced  in  equity  to  pay  back  their  money  and 
interest,  and  be  put  into  the  same  plight  in  effect  as  they 
would  have  been  if  they  had  broken  their  agreement, 
(*)seems  hard;  and  the  more,  because  all  the  reasons  which 
are  used  to  enforce  such  a  decree  do  arise  either  from 
the  eviction  by  Mrs.  Ann  Moseley,  or  from  the  supposed 
defective  and  illusory  performance  of  the  agreement  by 
the  defendants,  or  from  some  other  circumstance  in  the 
case  which  hath  disabled  the  plaintiff'  to  sue  his  bond  at 
law  ;  and  yet  no  arguments  are  drawn  from  any  of  these 
heads  strong  enough  to  support  this  bill.  For,  first,  as 
to  the  eviction ;  although  after  the  bond  and  the  agree- 
ments the  lands  were  evicted  by  Mrs.  Ann  Moseley,  so 
that  the  defendants  may  now  seem  to  retain  the  600/. 
for  nothing,  yet  he  that  purchases  lands  with  any  other 
covenants  or  warranties  against  prior  titles,  as  here,  where 
the  defendants  sold  only  their  own  title,  if  the  land  be 
afterwards  evicted  by  an  eigne  title,  can  never  exhibit 
a  bill  in  equity  to  have  his  purchase-money  again,  upon 
that  account  possibly  there  may  be  equity  to  stop  the 
payment  of  such  purchase-money  as  is  behind,  but  never 
to  recover  what  is  paid  ;  for  the  Chancery  mends  no  man's 
bargain,  though  it  sometimes  mends  his  assurance  ;  and 
it  cannot  be  truly  said  that  the  defendants  keep  the 
money  for  nothing,  since  they  have  done  all  which  was 
agreed  to  be  done  for  it ;  but  if  the  plaintiff"  had  bought 
that  which  falls  out  to  be  worth  nothing,  he  can  complain 
of  none  but  himself." 

After  discussing  the  manner  of  the  defendants,  per- 
formance of  their  agreement,  the  reasons  of  Lord  Notting- 
ham proceed  thus  :     "  For  whereas  the  plaintiff  supposes 

(*557) 


INCUMBRANCES. 


63S 


himself  disabled  to  go  to  law,  in  regard  the  defendants 
are  not  obliged  to  repay  without  a  re-conveyance,  which 
cannot  now  be  made  in  regard  of  Ann  Moseley's  evic- 
tion, his  Lordship  conceived  this  to  be  only  a  pretence ; 
for  whether  the  title  be  good  or  bad,  the  plaintiff  may  still 
proceed  to  re-convey  what  was  pre-conveyed,  and  then 
assign  the  breach  in  not  suffering  a  recovery  if  he  think 
(*)good.  And  the  plaintiff  might  as  reasonably  have 
prayed  a  decree  heretofore  that  the  defendants  might  not 
perform  their  agreement,  as  pray  a  decree  now  that  they 
may  be  never  the  better  for  it,  if  they  have  performed  it. 
Wherefore,  upon  the  whole  matter,  though,  if  the  defen- 
dants had  been  plaintiffs  for  the  money,  his  Lordship 
would  hardly  have  decreed  for  them ;  as  they  were  de- 
fendants, and  in  possession  of  money  upon  an  agreement 
executed,  his  Lordship  saw  no  cause  to  decree  against 
them. 

But  yet  he  did  not  absolutely  dismiss,  but  decreed, 
1st,  if  plaintiff  go  to  law,  defendants  to  admit  a  re- 
conveyance, and  not  to  take  advantage  of  eviction  here  ; 
2d,  if  plaintiff  release  defendants,  to  make  further  as- 
surance. 

So  where(2;)  A.  bought  an  estate,  to  one  moiety  of 
which  there  was  a  clear  defect  of  title,  which  his  counsel 
had  overlooked,  and  he  was  afterwards  evicted ;  he  filed 
a  bill  asserting  his  claim  to  be  repaid  a  moiety  of  the  pur- 
chase-money, although  the  covenants  for  title  did  not  ex- 
tend to  the  eviction,  but  the  bill  was  dismissed(I). 

(2)  See  3  Yes.  jun.  236 ;  and  see  2  Bos.  &,  Pull.  23. 

(I)  In  the  second  vol.  of  Coll.  of  Decis.  p.  517,  518,  a  case  to  the 
same  effect  is  reported. — Lands  which  were  sold  with  the  warrandice 
from  fact  and  deed  allenarly,  being  evicted,  but  not  through  default  of 
the  disposer,  the  purchaser  brought  an  action,  not  upon  the  warrandice, 
which  was  not  incurred,  but  upon  this  ground  of  equity,  that  if  he  has 
lost  the  land,  he  ought  at  least  to  have  a  repetition  of  the  price.     It  was 

VOL.   1.  80  (*558) 


gg^  OF  RELIEF  IN  RESPECT  OF 

The  facts  of  this  case  were  as  follow  :  William  Davy 
(*)devised  the  estate  in  question  to  Sir  Robert  Ladbroke 
and  Lyde  Brown,  as  tenants  in  common,  in  fee  ;  and  gave 
all  the  residue  of  his  real  estate  to  his  brother  William 
Pate  in  fee.  Sir  Robert  Ladbroke  died  in  the  testator's 
life-time.  Robert  Pale,  as  devisee  of  William  Pate,  the 
residuary  devisee,  conceived  himself  to  be  entitled  to  the 
moiety  devised  to  Sir  Robert  Ladbroke,  which  became 
lapsed  by  his  death,  in  the  testator's  life-lime(I)  ;  and 
accordingly  Robert  Pate  joined  with  the  persons  entitled 
to  the  moiety  devised  to  Lyde  Brown,  in  selling  the  estate 
to  one  Urmston.  The  conveyance  recited  the  will  of  William 
Davy,  and  all  the  subsequent  instruments,  and  a  covenant 
was  inserted  for  the  title,  notwithstanding  any  act  done 
by  Robert  Pate,  or  his  ancestors,  or  any  person  claiming 
under  him  or  them.  The  purchaser  finding  Robert  Pate 
had  no  title  to  the-moiety  over  which  he  assumed  a  power 
of  disposition,  but  that  it  had  descended  to  the  heir  at 
law  of  William  Davj',  filed  his  bill,  praying  that  the  pur- 
chase-money might  be  restored  to  him.  Robert  Pate, 
the  vendor,  demurred  to  the  bill  for  want  of  equity,  and 
the  demurrer  was  allowed(«). 

(a)  Urmston  v.  Pate,  Chan.  1st  Nov.  1794,  cited  in  1  Tiea.  Eq. 
364,  n.  and  stated  in  4  Cruise's  Digest,  90,  s.  64. 

answered,  that  when  one  sells  with  warrandice  from  fact  and  deed,  the 
intention  is  not  to  sell  the  subject  absolutely,  which  would  be  the 
same  as  selling  it  with  absolute  warrandice,  but  oniy  to  gel!  it  so  as 
the  seller  himself  has  it,  that  is  to  sell  what  title  and  interest  he  has 
in  the  subject :  the  purchaser  takes  upon  hiniseif  all  other  hazards  ; 
and,  therefore,  if  eviction  happen  otherwise  than  through  the  fact  and 
deeds  in  the  disponer,  he  bears  the  loss.  The  Lords  assoilzed.  Craig 
I'.  Hopkins. 

(I)  The  mistake  arose  from  the  case  of  lapse  being  considered  the 
same  in  regard  to  real  and  personal  estate  :  in  the  case  of  personal 
estate  lapsed  legacies  fall  into  the  residue  ;  but  where  a  real  estate 
lapses,  it  descends  to  the  heir  at  law,  and  does  not  pass  to  the  residuary 
devisee. 

(*659) 


INCUMBRANCES. 


635 


III  a  case  where  a  purchaser  bought  and  obtained  a  con- 
veyance of  an  estate  with  all  defects  and  faults  of  title, 
and  the  seller  upon  being  interrogated,  stated  that  no 
rent  had  ever  been  paid,  which  turned  out  to  be  false, 
and  the  title  being  merely  a  leasehold  the  estate  was  re- 
covered by  the  lessor;  upon  an  action  by  the  purchaser 
to  recover  the  purchase-money,  it  Avas  left  to  the  jury  to 
(*)say  whether  the  seller  really  believed  that  no  rent  had 
ever  been  paid,  in  which  case  the  learned  Judge  told  them 
that  the  statement  was  not  fraudulent,  and  he  was  not 
liable,  and  the  jury  found  for  the  defendant.  The  Court 
refused  to  disturb  the  verdict.  The  statement,  though 
false,  in  fact  was  not  fraudulent.  There  was  no  distinc- 
tion between  an  active  and  a  passive  communication,  for 
a  fraudulent  concealment  is  as  bad  as  a  wilful  misrepre- 
sentation. A  fraudulent  concealment  by  the  seller  of  a 
fact  which'  he  ought  to  communicate,  would  undoubtedly 
vitiate  the  sale,  but  in  order  to  have  that  effect  the  con- 
cealment must  be  fraudulent.  The  scienter  or  fraud  is 
the  gist  of  the  action  when  there  is  not  a  warranty(6). 

But  it  should  be  observed  that  in  this  case,  as  one  of 
the  Judges  remarked,  the  purchaser  bought  the  land  with 
all  faults  and  defects  of  title. 

So,  if  a  purchaser  neglect  to  look  into  the  title,  it  will 
be  considered  as  his  own  folly,  and  he  can  have  no  relief. 
It  has  even  been  laid  down,  that  if  one  sells  another's 
estate  without  covenant  or  warranty  for  the  enjoyment,  it 
is  at  the  peril  of  him  who  buys,  because  the  thing  being 
in  the  realty,  he  might  have  looked  into  the  title,  and 
there  is  no  reason  he  should  have  an  action  by  the  law 
where  he  did  not  provide  for  himself(c)(262).     But  it  may 

(6)  Early  v.  Garrett,  4  Mann.  &  Ryl.  687.  As  to  defects  in  the 
quality  of  the  estate,  see  p.  292. 

(c)  Roswell  V.  Vaughan,  2  Cro.  196  ;  Lysney  v.  Seivy,  2  Lord  Rayui. 


(262)   See   Bumpus  v.    Plainer,   Johns.   Cli.    Kcp.   213.     See  also 

Slochion  V.  Cook,  3  Munf  68. 

(*560) 


636 


or  RELIEF  IN  RESPECT  OF 


here  be  remarked,  that  by  the  32  H.  8,  c.  9,  no  person 
must  either  buy  or  sell  any  pretended  title  unless  the  seller 
or  the  persons  from  whom  he  claims  have  been  in  posses- 
sion of  the  estate,  or  of  the  reversion  thereof,  or  taken  the 
rents  thereof  for  a  year  before  the  sale,  unless  the  pur- 
chaser is  in  lawful  possession,  in  which  case  he  may  buy 
(*)in  any  pretended  right ;  and  he  will  not  in  any  case  be 
affected,  unless  he  bought  with  notice(c). 

In  a  late  case  the  statute  was  pleaded  with  efirect(f/). 
In  a  recent  instance  this  statute  was  actually  pleaded  to 
a  bill  for  a  specific  performance,  on  the  ground  that  the 
plaintiff  himself  was  only  entitled  under  an  agreement  for 
purchase  of  the  estate  ;  but  there  was  no  foundation  what- 
ever for  such  a  defence.  It  is  perfectly  clear  that  the 
statute  does  not  apply  to  such  a  case.  The  sale  is  not  of 
a  pretended  right  or  title,  but  of  the  estate  in  fee-simple 
in  possession,  subject  certainly  to  the  decision  of  a  court 
of  equity  upon  the  right  to  a  specific  performance.  There 
were  lately  similar  cases  in  court,  and  one  particularly  of 
great  magnitude,  in  which  the  sub-purchaser  would  have 
been  happy  to  avail  himself  of  any  objection  to  get  rid  of 
the  contract,  but  it  never  before  occurred  to  any  one  to 
plead  the  statute.  It  might  with  equal  force  be  argued, 
that  a  purchaser  under  an  agreement  has  not  a  devisable 
interest,  for  it  is  settled,  that  a  mere  right  of  entry  is  not 
devisable;  and  this,  it  may  be  said,  is  "a  mere  pre- 
tended right  or  title."  The  clear  doctrine  is,  that  the 
purchaser,  from  the  time  of  the  contract,  is  in  equity  the 
owner  of  the  estate,  and  may  devise,  sell  and  dispose  of  it 
in  the  same  manner  as  if  the  fee  were  actually  conveyed 

1118;  Goodlitle  r.  Morgan,  1  Term  Rep.  755;  and  see  Anon.  2 
Freera.  106  ;  and  see  and  consider  Hitchcock  v.  tJiddings,  4  Price, 
135. 

(c)  See  4  Rep.  26  a;  Bac.  Abr.  tit.     Maintenance,  (E.) 

(d)  Hitchins  v.  Lander,  Coop.  34. 
(*561) 


INCUMBRANCES. 


637 


to  him,  although  if  equity  ultimately  refuse  a  specific 
performance,  the  devise,  sale  or  other  disposition  neces- 
sarily falls  to  the  ground.  In  a  late  case  Lord  Eldon  re- 
probated the  doctrine.  His  Lordship  held  clearly,  that 
the  sale  of  an  equitable  estate  under  a  contract  was 
binding.  It  was  every  day's  practice.  Upon  a  sale  of 
an  interest  under  a  contract,  the  seller  becomes  a  trustee 
(*)for  the  second  purchaser,  and  the  second  purchaser  is, 
without  entering  into  a  covenant,  bound  to  indemnify 
him  against  any  costs  incurred  in  proceedings  for  his 
benefit.  The  Court  not  only  considers  it  not  unlawful, 
but  compels  him  to  permit  his  name  to  be  used  for  the 
benefit  of  the  second  purchaser(e).  This  puts  the  point 
at  rest. 

•It  is  not  champerty  in  an  agreement  to  enable  the  bona 
fide  purchaser  of  an  estate  to  recover  for  rent  due,  or  in- 
juries done  to  it  previously  to  the  purchase(y). 

"  Where  a  purchaser  has  taken  a  defective  title,  and 
cannot  recover  against  his  immediate  vendor,  his  only 
remedy  is  to  have  recourse  to  the  cov^enants  of  the  earlier 
vendors,  many  of  which  are  inherent  to  the  lands,  and  to 
some  of  which,  as  the  covenant  for  quiet  enjoyment,  there 
is  no  objection,  on  account  of  their  antiquity,  where  the 
, breach  is  recent(,g-)." 

3.  It  seems,  that  if  the  conveyance  be  actually  exe- 
cuted, the  purchaser  can  obtain  no  relief,  although  the 
money  be  only  secured. 

In  an  early  case,  however(^),  where  A.  had  sold  to  B.., 
with  covenants  only  against  A.,  and  all  claiming  by,  from, 
or  under  him,  B.  secured  the  purchase-money  ;  but  before 

(e)  Wood  r.  Griffith,  12th  Feb.  1818,  MS. 
(/)  Williams  v.  Protheroe,  5  Bing.  309;  3  Yo.  &  Jerv.  129. 
(g-)   Butler's  n.  (1).  to  Co.  Litt.  384  a. 

{h)  Anon.  2  Cha.  Ca.  19  ;  and  see  Fonbl.  n.  (g)  to  1  Trea.  Eq. 
361,  2d  edition. 

(*562) 


g38  ^^  RELIEF  IN  RESPECT  OF 

payment,  the  land  was  evicted  by  a  title  paramount  to 
A.^s  and  Lord  Chancellor  Finch  relieved  from  the  pay- 
ment of  the  purchase-money. 

The  case,  it  seems,  was  not  taken  by  the  reporter  him- 
self, and  he  adds  the  follo^ving  notes  or  queries  to  it : 

First.  If  declaration  at  the  time  of  the  purchase  treated 
(*)on,  that  there  was  an  agreement  to  extend  against  all 
incumbrances,  not  only  special,  it  could  not  have  been 
admitted. 

Secondly.  The  affirmative  covenant  is  negative  to  what 
is  not  affirmed,  and  all  one  as  if  expressly  declared  that 
the  vendor  was  not  to  warrant  but  against  himself,  and 
the  vendee  to  pay,  because  absolute  without  condition. 

Thirdly.  Qucere.  If  this  may  not  be  made  use  of  to  a 
general  inconvenience,  if  the  vendee,  having  all  the  writ- 
ings, and  purchase,  is  weary  of  the  bargain,  or  in  other 
respects  sets  up  a  title  to  a  stranger  by  collusion:' 

Nota.  In  many  cases  it  may  be  easily  done,  &c. 

These  remarks  are  unanswerable  \  and  if  the  doctrine 
in  this  case  were  law,  the  consequences  would  be  of  a 
very  serious  nature ;  for  what  vendor  would  permit  part 
of  the  purchase  money  to  remain  on  mortgage  of  the 
estate,  if  he  were  liable  to  lose  it,  supposing  the  estate  to 
be  recovered  by  a  person  a<i;ainst  whose  acts  he  had  not , 
covenanted  ?  Indeed,  this  point  is  so  very  differently 
considered  in  practice,  that  where  part  of  the  purchase- 
money  is  permitted  to  remain  on  mortgage,  although  the 
covenants  from  the  vendor  be  limited,  the  vendee  invari- 
ably enters  into  general  unlimited  covenants,  in  the  same 
manner  as  he  would  have  done  in  the  case  of  an  inde- 
pendent mortgage. 

In  a  case(f)  where  an  estate  was  sold  before  a  Master 
under  a  decree,  and  the  purchaser  under  the  usual  order 
had  paid  his  purchase-money  into  the  Bank,  but  it  was 

(i)  Thomas  v.  Powell,  2  Cox,  394. 
(^'^663)      • 


INCUMBRANCES. 


639 


not  to  be  paid  out  without  notice  to  him,  and  he  took 
possession,  and  approved  of  the  title,  and  the  conveyance 
to  him  was  executed  by  all  necessary  parties  ;  afterwards, 
but  before  the  money  was  paid  out  of  the  Bank,  the  tenants 
(*)were  served  with  a  writ  of  right,  at  the  suit  of  an  ad- 
verse claimant ;  it  was  held  that  the  money  must  be  ap- 
plied under  the  decree.  The  Court  having  given  the  pur- 
chaser possession  of  the  estate  which  he  had  purchased, 
and  a  conveyance  under  a  title  which  he  himself  had  pre- 
viously approved,  had  done  all  it  could  for  the  purchaser, 
who  could  not  afterwards  object  to  the  application  of  the 
purchase-money. 

But  this  does  not  apply  to  a  sale  under  the  Court, 
where  the  rent  is  misrepresented  :  although  the  money 
be  paid  into  court  and  possession  be  dehvered,  and  a  con- 
veyance executed,  yet  the  Court  will  give  to  the  purchaser 
out  of  the  funds  in  Court,  a  compensation  for  the  misre- 
presentation(A;). 

4thly.  Although  the  purchase-money  has  been  paid, 
and  the  conveyance  is  executed  by  all  the  parties,  yet  if 
the  defect  do  not  appear  on  the  face  of  the  title-deeds, 
and  the  vendor  was  aware  of  the  defect,  and  concealed 
it  from  the  purchaser,  or  suppressed  the'  instrument  by 
which  the  incumbrance  was  created,  or  on  the  face  of 
which  it  appeared,  he  is  in  every  such  case  guilty  of  a 
fraud(/)(263),  and  the  purchaser  may  either  bring  an  ac- 
tion on  the  case,  or  file  his  bill  in  equity  for  relief. 

But,  as  Mr.  Butler  remarks,  a  judgment  obtained  after 
the  death  of  the  seller,  in  an  action  of  this  nature,  can 
only  charge  his  property  as  a  simple  contract  debt,  and 
will  not,  therefore,  except  under  very  particular  circum- 

{k)  Cann  v.  Cann,  3  Sim.  447. 

(/)  See  Harding  V.  Nelthorpe,  Nels.  Cha.  Rep.  118;  and  Bree  «. 
Holbech,  Dougl.  654,  2d  edit.  ;  and  see  Freem.  2. 


(263)  See  Dorsey  v.  Jackman,  1  Serg.  &  Rawle,  42.  and  ante,  p.  23. 

C*564) 


640 


OF  RELIEF  IN  RESPECT  OF 


Stances,  charge  his  real  assets.  A  bill  in  Chancery,  in 
most  cases,  will  be  found  a  better  remedy :  it  will  lead  to 
a  better  discovery  of  the  concealment,  and  the  circum- 
stances (*)attending  it,  and  may  in  some  cases  enable  the 
Court  to  create  a  trust  in  favor  of  the  injured  pur- 
chaser(m). 

Where  a  bill  is  filed  against  the  vendor,  and  the 
Court  cannot  satisfy  itself  of  the  fact,  an  issue  will  be 
directed  to  try  whether  the  vendor  did  know  of  the 
incumbrance(n). 

In  a  late  case,  where  the  sellers  knew  of  a  defect  in  the 
title  to  a  part  of  the  estate,  which  was  material  to  the  en- 
joyment of  the  rest,  and  did  not  disclose  the  fact  to  the 
purchaser,  and  it  could  not  be  collected  from  the  abstract, 
the  purchaser,  although  he  was  not  evicted,  was  relieved 
against  the  purchase  in  equity.  The  sellers  were  decreed 
to  repay  the  purchase-money,  with  costs,  and  likewise  all 
expenses  which  the  purchaser  had  been  put  to  relative 
to  the  sale,  together  with  an  allowance  for  any  money  he 
laid  out  in  repairs  during  the  time  he  was  in  possession  (o). 
This  is  a  case  of  the  first  impression.  But  after  the  con- 
tract is  executed  by  a  conveyance  and  payment  of  the 
purchase-money,  a  bill  cannot  be  filed  merely  for  corn- 
pen  sation(j!y). 

Although  the  vendor  has  fraudulently  concealed  an  in- 
cumbrance, yet  the  purchaser  has  no  lien  on  the  purchase- 
money  after  it  is  appropriated  by  the  vendor. 

(ju)  See  Butler's  n.  (1)  to  Co.  Litt.  34  a. 

(n)  Harding  v.  Nelthorpe,  ubi  sup. 

(o)  Edwards  v.  M'Leay,  Coop.  308  ;  affirmed  by  Lord  Eldon  on 
appeal,  11  July  1818,  with  a  reservation  of  the  question  as  to  repairs, 
MS.  ;  S.  C.  2  Svvanst.  287.  The  question  upon  the  right  to  rescind  is 
fully  considered,  and  all  the  authorities  cited,  in  Mr.  Younge's  Report 
of  Small  V.  Attwood. 

{p)   Lenham  v.  May,  13  Price,  749. 

(*565) 


INCUMBRANCES. 


641 


Thus,  in  the  case  of  Cator  v.  Earl  of  Pembroke(9), 
Lord  Bolingbroke  was  tenant  for  life  of  a  settled  estate, 
with  a  power  to  sell  and  lay  out  the  money  arising  by  sale 
(*)in  other  lands  ;  and  in  the  mean  time  to  invest  the  same 
in  the  funds.  Lord  Bolingbroke  granted  life-annuities 
out  of  the  estate,  and  then  he  and  the  trustees  of  the  set- 
tlement sold  the  estate  to  Cator,  who  was  ignorant  of  the 
annuities,  and  Lord  B.  covenanted  that  Cator  should 
enjoy  free  from  incumbrances.  The  purchase-money  was 
invested  in  the  funds  in  the  names  of  the  trustees,  and 
Lord  Bolingbroke  granted  annuities  to  Boldero  the  banker, 
to  the  extent  of  the  dividends  ;  and  the  trustees,  at  the 
request  of  Lord  Bolingbroke,  gave  Boldero  an  irrevocable 
power  of  attorney  to  receive  the  dividends.  Cator  being 
evicted  by  the  grantee  of  the  annuities  charged  on  the 
estate,  filed  his  bill,  insisting  that  he  had  a  lien  on  the 
purchase-money  invested  in  the  funds,  and  was  entitled 
to  the  dividends  in  exclusion  of  Boldero.  The  cause  was 
first  heard  before  the  Lords  Commissioners  Lou^hbo- 
rough,  Ashhurst  and  Hotham,  who  thought  that  Cator  had 
a  lien  on  the  dividends,  but  that  Boldero  had  a  preferable 
equity,  and  therefore  dismissed  the  bill.  The  cause  was 
reheard  before  Lord  Thurlow(r),  who  affirmed  the  decree, 
and  was  moreover  of  opinion,  that  Cator  could  not  follow 
the  money  when  deposited  with  the  trustees,  but^  that 
having  taken  a  covenant  for  quiet  enjoyment  and  a  good 
title,  his  remedy  was  that  way. 

Where  a  purchaser  pays  part  of  the  purchase-money 
generally  to  a  creditor  of  the  vendor,  by  judgment,  or 
other  security  affecting  the  land,  and  also  by  bond,  or 
other  security,  which  does  not  afiect  the  land,  it  will 
be  considered  as  a  payment  in  satisfaction  of  the  judg- 

(f/)   Cator  V.  Earl   of  Pembroke,    1  Bro.  C.  C.  301  ;     and   see   and 
consider  12  Ves.  juii.  356.  377. 
(r)   2  Bro.  C .  C.  282. 
Vol.   I.  81  (A566) 


642  ^^  RELIEF  IN  RESPECT  OF  INCUMBRANCES. 

ment,    or    other   incumbrance    which   charges    the    es- 
tate (5)  (264). 

(*)ft  may  here  be  observed,  that  if  a  seller  is  bound 
to  relieve  the  estate  sold  from  incumbrances,  and  the  pur- 
chaser buys  them  up,  he  ought  not  to  charge  more  than 
he  paid,  as  that  is  the  amount  of  the  damage  which  he 
sustains  by  the  breach  of  the  covenant  to  pay  ofif  the 
incumbraces(i;)(265). 

(5)  Brett  V.  Marsh,  1  Vern.  468.     See  Hayward  v.  Lomax,  1  Vern. 
24  ;  Peters  v.  Anderson,  5  Taunt.  596. 
(t)  2  Dow.  296. 

(264)  The  question  agitated  in  these  cases,  was,  whether  the  party 
paying  money  has  a  right  to  direct  the  appropriation.  See  Robert  v. 
Garnie,  3  Caines,  14.  Mayor  of  Alexandria  v.  Patten,  4  Cranch,  317. 
Field  V.  Holland,  6  Cranch  8. 

(265)  And  if  the  purchaser  agree  to  pay  a  certain  sum,  in  dis- 
charge of  an  incumbrance,  for  which  sum  he  is"  to  have  a  credit  in  part 
of  the  purchase  money ;  and  it  does  not  appear,  that  the  vendor  deceiv- 
ed him  with  respect  to  the  sum,  for  which  the  removal  of  the  incumbrance 
could  be  effected,  he  is  not  to  be  credited  for  any  larger  sum,  which 
the  incumbrancer  may  have  compelled  him  to  pay.  Mayo  v.  Purcel,  3 
Munf.  243. 

(*567) 


END    OF    VOL.    I. 


A 

PRACTICAL  TREATISE 

OF 

THE  LAW 

OF 

VENDORS  AND    PURCHASERS 

OF 

ESTATES. 

By  sir  EDWARD  SUGDEN. 


BONiE     FIDEI      VENDITOREM,    NEC      COMMODORUM    SPEM     AUGERE,    NEC 
INCOMMODORUM    COGNITIONEM    OBSCURARE    OPORTET. 

Valerius  Maximus,  1.  vii.  c.  11. 


FROM  THE  NINTH  LONDON  EDITION. 
WITH    NOTES    AND    REFERENCES    TO    AMERICAN    DECISIONS. 


IN     TWO     VOLUMES. 

VOL.  n. 


BROOKFIELD,   MASS. 
PUBLISHED   BY   E.    &   L.   MERRIAM. 

1836. 


Entered  according  to  the  Act  of  Congress,  in  the  year  1836, 

BY  E.  &  L.  MERRIAM, 
in  the  Clerk's  Office  of  the  District  Court  of  Massachusetts. 


E.    AND    L.    MERRIAM,    PRINTERS. 


h 


THE  LAW 

OF 

VENDORS  AND  PURCHASERS 

OP 

ESTATES. 

CHAPTER  X. 

OF    INTEREST    AND    COSTS. 

SECTION  I. 
Of  Interest. 


I.  Equity  considers  that  which  is  agreed  to  be  done, 
as  actually  performed  ;  and  a  purchaser  is  therefore  en- 
titled to  the  profits  of  the  estate  from  the  time  fixed  upon 
for  completing  the  contract,  whether  he  does  or  does  not 
take  possession  of  the  estate(a)  :  and  as,  from  that  time, 
the  money  belongs  to  the  vendor,  the  purchaser  will  be 
compelled  to  pay  interest  for  it,  if  it  be  not  paid  at  the 
day(6)(266). 

(a)    See  6  Ves.  jun.  143,  352. 

(6)  See  Sir  James  Lowther  v.  the  Countess  Dowager  of  Andover,  1 
Bro.  C.  C.  396,  and  see  6  Ves.  jun.  352. 

(266)  See  Hundlex^^.v.  Lijons,  5  Munf.  342.    See  also,  Mayo  v.  Pur- 
cell,  3  Munf.  243.     In  the  case  of  a  purchase,  the  vendee  has  the  pos- 


4  OF  INTEREST. 

The  same  rule  applies  to  a  sale  of  a  reversion — interest 
must  be  paid  from  the  time  fixed  upon  for  payment  of  the 
(*)purchase-money,  because  the  wearing  of  the  lives  is 
equivalent  to  taking  the  profits(c). 

This  is  so  plain  a  rule,  that  no  disputes  could  ever  arise 
on  it,  if  the  purchase-money  were  not  frequently  lying 
dead  ;  in  which  case  it  becomes  a  question,  whether  the 
loss  of  interest  shall  fall  on  the  vendor  or  purchaser. 

If  the  delay  in  completing  the  contract  be  attributable 
to  the  purchaser,  he  will  be  obliged  to  pay  interest  on 
the  purchase-money  from  the  time  the  contract  ought  to 
have  been  carried  into  effect,  although  the  purchase- 
money  has  been  lying  ready,  and  without  interest  being 
made  of  it(d).  • 

But  if  the  delay  be  occasioned  by  the  default  of  the 
vendor,  and  the  purchase-money  has  lain  dead,  the  purchas- 
er will  not  be  obliged  to  pay  interest(e)(267).  The  pur- 
chaser must,  however,  in  general,  give  notice  to  the  vendor 
that  the  money  is  lying  de^d(f)  ;  for  otherwise  there  is 

(c)  Davy  v.  Barber,  2  Atk.  490  ;  and  see  Owen  v.  Davis,  1  Yes.  82  ; 
3  Atk.  637 ;  vide  post  as  to  the  sale  of  a  reversion  before  a  Master. 

(d)  Calcraft  v.  Roebuck,  1  Ves.  jun.  221. 

(e)  Rowland  v.  Morris,  1  Cox,  69. 

(/)  Calcraft  v.  Roebuck,  ubi  sup.  ;  and  see  Roberts  v.  Massey,  13 
Ves.  jun.  561. 

session  of  the  land,  in  lieu  of  interest ;  and  therefore,  if  there  be  a  con- 
dition to  repurchase,  it  may  be  done  on  payment  of  principal  only,  unless 
interest  be  expressly  mentioned  ;  because,  otherwise,  the  vendee  would 
have  double  satisfaction ;  viz :  interest  and  the  use  of  the  land. 
Thompson  v.  Davenport,  1  Wash.  127.  Where  the  vendor  is  indebted 
to  the  vendee,  and  the  sale  is  made  in  order  to  pay  the  debt,  the  vendor 
must  pay  interest  from  the  time  the  debt  is  liquidated,  until  he  makes  a 
good  title  ;  and  the  vendee  is  accountable  for  the  rents  and  profits  from 
the  time  the  title  is  perfected,  until  the  contract  is  specifically  enforced. 
Hepburn  v.  Dunlop,  1  Wheat.  179. 

(267)  See  Wainrighl  v.  Read,  1  Des.  573.  Wightman  v.  Reside, 
2  Des.  578. 

(*2) 


OF  INTEREST. 


no  equality  :  the  one  knows  the  estate  is  producing  inte- 
rest, the  other  does  not  know  that  the  money  does  not 
produce  interest(.o").  Wherever,  therefore,  a  purchaser 
is  delayed  as  to  the  title,  and  means  to  insist  upon  this, 
he  ought  to  apprise  the  other  party  that  he  is  making  no 
interest.  But  even  if  a  purchaser  gave  such  notice,  yet 
if  it  appears  that  the  money  was  not  actually  and  bona 
jide  appropriated  for  the  purchase,  or  that  the  purchaser 
derived  the  least  advantage  from  it,  or  in  any  manner 
made  use  of  it,  the  Court  would  compel  him  to  pay 
interest. 

In  Winter  v.  Blades(/?),  the  terms  of  the  contract  are 
(*)not  mentioned,  but  the  other  facts  are  thus  stated  :  The 
bill  in  this  cause  was  filed  by  the  vendor  of  an  estate, 
merely  for  the  purpose  of  claiming  interest  on  the  pur- 
chase-money from  the  time  the  defendant,  the  purchaser, 
was  let  into  possession.  The  purchase-money  was 
14,000/.,  and  immediately  upon  entering  into  the  con- 
tract, the  purchaser  called  in  a  sum  of  money,  secured 
by  a  mortgage,  amounting  to  12,400/.,  and  upon  entering 
into  possession  of  the  estate,  gave  notice  to  the  vendor 
that  he  was  ready  to  invest  the  purchase-money  as  he 
should  direct,  pending  the  investigation  of  the  title. 
The  vendor,  hoping  for  an  immediate  conclusion  of  the 
purchase,  did  not  answer  that  notice.  The  investigation 
of  the  title,  however,  occupied  nine  months.  The 
banker  of  the  defendant  proved  that  during  the  nine 
months  the  balance  of  the  defendant  in  his  hands  was 
never  less  than  14,000/.,  except  during  three  successive 
days,  when  it  was  13,876/. ;  and  one  other  day,  when  it 
was  13,796/. 

The  Vice-Chancellor  said,  if  after  notice  given  by  the 
defendant,  he  had  made  no  profit  of  the  purchase-money, 

(g)  Powell  V.  Martyr,  8  Ves.  jun.  146.  See  Cotner  t'.  Waikley,  ftosL 
{it)  2  Sim.  &  Stu.  393. 

(*3j 


Q  OF  INTEREST. 

then  it  would  not  be  reasonable  that  he  should  be  charged 
with  interest.  But  that  he  has  made  some  profit  of  the 
money,  appears  upon  the  defendant's  own  evidence  ; 
first,  because  his  balance  at  his  banker's  was  in  a  small 
degree  and  for  a  few  days  reduced  below  the  amount  of 
the  purchase-money,  but  principally  because  the  pur- 
chase-money supplied  the  place  of  that  balance,  which 
he  must  otherwise  have  maintained  at  his  banker's.  It 
was  decreed  that  the  Master  should  inquire  what  was  the 
average  balance  which  the  defendant  maintained  at  his 
banker's  during  the  three  years  preceding  the  purchase, 
computing  such  balances  at  the  end  of  every  month ;  and 
the  Master  was  also  to  inquire  what  was  the  average 
balance  which  during  the  time  in  question  the  defendant 
(*)maintained  at  his  banker's,  computing  such  balance 
monthly  ;  and  the  Master  was  to  deduct  what  he  should 
find  to  have  been  the  defendant's  average  balance  for  the 
three  years,  from  what  he  should  find  to  have  been  the 
defendant's  average  balance  during  the  time  in  question, 
and  it  was  declared  that  to  the  amount  of  that  difference 
the  defendant  was  not  chargeable  with  interest  on  his 
purchase-money. 

If  no  time  be  limited  for  performance  of  the  agreement, 
and  the  purchaser  be  let  into  possession  of  the  estate,  he 
must  pay  interest  on  the  purchase-money  from  that  time(i). 

It  cannot,  however,  be  laid  down  as  a  general  rule, 
that  a  purchaser  of  estates  under  a  private  agreement 
shall,  from  the  time  of  taking  possession,  pay  interest.  At 
any  rate,  although  the  conveyance  be  executed,  yet  he 
shall  not  pay  interest  but  from  the  time  of  taking  posses- 
sion, if  prevented  from  so  doing  by  the  vendor(A:).  But 
it  must  be  a  strong  case,  and  clearly  made  out,  in  which 

(i)   See  tx  parte  Manning,  2  P.  AVms.  410. 

(k)   Per  Lord  Hardwicke,  in  Blount  v.  Blount,  3  Alk.  636. 


OF  INTEREST. 


he  shall  not  pay  interest  where   he  has  received  the  rents 
and  profits(/)(268). 

Thus,  in  Comer  v.  Walkley(m),  the  purchaser  had  been 
in  possession  of  the  estate  about  twenty-two  years,  with- 
out any  conveyance  having  been  executed  ;  and  he  had 
not  paid  the  purchase-money.  The  delay  was  not  attri- 
butable to  him,  and  he  stated  that  his  money  had  been 
lying  ready  from  the  time  of  the  contract,  without  interest 
being  made  by  it,  as  he  was  in  daily  expectation  of  being 
called  upon  for  payment  of  it ;  and  therefore  he  insisted 
that  he  ought  not  to  be  compelled  to  pay  interest.  Lord 
Thurlow,  however,  decreed,  that  he  should  pay  interest 
at  four  per  cent,  from  the  time  he  entered  into  possession 
(*)to  the  time  he  paid  the  purchase-money  into  the  Bank 
by  the  order  of  the  Court. 

And  in  a  late  case,  where  a  particular  day  was  appoint- 
ed by  the  agreement  for  payment  of  the  money,  and  the 
purchaser  was  to  have  a  conveyance  on  payment  of  it, 
the  purchaser  entered  before  the  conveyance  was  execut- 
ed, and,  after  a  delay  of  several  years,  during  which  he 
had  received  the  rents,  being  called  upon  to  pay  the  pur- 
chase-money, with  interest,  he  resisted  the  demand  of 
interest ;  and  in  answer  to  a  bill  filed  against  him,  it  was 
insisted  that  interest  was  not  payable,  as  the  money  was 
to  be  paid  on  an  event  depending  upon  an  act  to  be  done 
by  the  vendor  (namely,  the  execution  of  the  conveyance) 
forming  a  condition  precedent  to  the  payment  of  the  pur- 
chase-money. But  Sir  Wm.  Grant,  Master  of  the  Rolls, 
after  observing  that  the  purchaser  did  not  allege  that  any 
circumstances  had  occurred  entitling  him  to  relinquish  the 
contract,  said,  that  the  act  of  taking  possession  was  an 

(/)   See  8  Ves.  jun.  148,  149. 

(m)  Reg.   Lib.  A.  1784,  fo.   625  ;  Smith  v.  Skelton,  Reg.  Lib.   B. 
1799,  fol.  807. 


(268)  See  Wighiman  v.  Reside,  2  Des.  678,  582. 

(*5) 


o  OF  INTEREST. 

implied  agreement  to  pay  interest ;  for  so  absurd  an 
agreement  as  that  the  purchaser  was  to  receive  the  rents 
and  profits  to  which  he  had  no  legal  title,  and  the  vendor 
was  not  to  have  interest,  as  he  had  no  legal  title  to  the 
money,  could  never  be  implied(?i)(269). 

If  it  be  agreed  that  the  purchaser  shall  take  possession 
of  the  estate,  and  pay  interest  on  the  purchase-money 
from  that  time,  and  it  afterwards  appear  that  a  long  time 
must  elapse  before  a  title  can  be  made,  the  purchaser  will 
be  entitled  to  rescind  the  agreement. 

But  if  the  purchaser  acquiesce  in  the  delay  until  the 
contract  is  nearly  carried  into  execution,  he  cannot  then 
appropriate  the  purchase-money,  and,  by  giving  notice  of 
that  circumstance  to  the  vendor,  discharge  himself  from 
the  payment  of  interest. 

(*)Thus,  in  Dickenson  v.  Heron(o),  after  the  execution 
of  a  contract  for  purchase  of  an  estate,  it  appeared  that  an 
act  of  parliament  was  necessary  to  perfect  the  title,  and 
that  some  time  must  elapse  before  a  title  could  be  made  ; 
and  it  was  therefore  agreed  that  the  purchaser  should  take 
possession  of  the  estate,  and  pay  interest  on  the  purchase- 
money.  Great  delays  having  arisen,  and  the  purchaser 
thinking  exchequer  bills,  in  which  the  purchase-money 
was  invested,  not  safe,  he  sold  them,  and  gave  notice  to 
the  vendor  that  the  money  was  lying  ready,  and  without 
interest  being  made  of  it.  After  the  purchase  was  com- 
pleted, and  the  money  paid,  the  vendor  filed  a  bill,  assert- 
ing his  right  to  interest  until  the  execution  of  the  convey- 
ance. 

The  cause  was  heard  before  Sir  Wm.  Grant,  Master  of 
the  Rolls,  who  pronounced  the  following  judgment : — 

(n)  Fludyer  v.  Cocker,  12  Ves.  jun.  25. 

(o)  Rolls,  16th  March  1804,  MS.     See  Fludyer  v.  Cocker,  supra. 

(269)  See  Boyle  v.  Rowtmd,  3  Des.  655. 
(*6) 


OF  INTEREST. 


9 

"  An   agreement  of  this  nature  is  totally  independent  of 
the  interest   made   by  the   money.      When  a  purchaser  is 
let  into  possession,  the  vendor  need  not  mind  what  is  done 
with   the  purchase-money,  because  the  purchaser  agrees 
to  pay  interest   for  the  money.     And  such  an  agreement 
can  only  be  affected  by  great  delay,  because   the  purcha- 
ser is  not  to  be  kept  for  ever  bound  by  a  disadvantageous 
bargain  ;  for  the  interest  might  be  better  than  the  rents ; 
in  "which  case,  if  the  purchaser  was  to  be  bound,  notwith- 
standing an  unreasonable  delay,   the  vendor  would  not 
mind  how  long  he  delayed  making  a  title.     If  the  objec- 
tion  had  been  taken   at  a  different  time   it  would   have 
been  better.     He   should  have  made  the  objection  when 
he  knew  that  an  act  of  parliament  was  necessary,  as  he 
was  not  before  in  possession  of  that  fact.     But  he  waved 
this  delay,  and   he  consents  to  continue  to  pay  interest, 
and   writes  a  letter  which  clearly  implies   that ;   or  he 
(^)might  have  waved  the  agreement.  Afterwards  he  thinks 
he  is  entitled   to  say  that  he  will  not  pay  interest.     The 
ground  was  totally  distinct.     He  had   laid  out  his  money 
in  exchequer  bills,  and  then,  upon  a  supposition  that  they 
w'ere  not  safe,  he  sold  out,  and   then  gave  notice  that  he 
would  not  pay  interest.     He  ought  certainly  to  have  given 
notice  before  he  sold   out,  and   to  have  given  the  vendor 
his  option,  whether  he  would  choose  them   to  remain  at 
his   risk,  or  would  wave  his  interest.     This  ground  was, 
however,  nothing  to  the  vendor,  as  he  had  nothing  to  do 
with  the  interest.     The  only  ground  upon  which  he  could 
have  waved  the  agreement,  was  the  delay  in   the  first  in- 
stance.    The  defendant  mistook  his  case  ;  he  might  have 
come  at  an  earlier  period,  and  insisted  not  to  pay  interest ; 
for  a  Court  would  not    have  held  him  to  an  indefinite 
period.     Besides,  the  notice  was  not  given  until  a  long 
delay  could  not  take  place."     And  the  Master  of  the  Rolls 
for  these  reasons  decreed   the  purchaser  to  pay  interest ; 
VOL.  II.  2  (*7) 


JQ  OF  INTEREST. 

but,  as  he  bound  himself  by  his  long  acquiescence,  his 
Honor  would  not  give  costs,  and  interest  was  only  given 
up  to  the  time  the  conveyance  was  delivered  to  the  ven- 
dor's attorney  for  execution,  although  it  was  not  executed 
until  three  months  afterwards. 

Where  it  was  stipulated  that  the  purchaser  was  to  pay 
a  deposit  of  twenty-five  per  cent.,  and  in  case  of  delay 
five  per  cent,  interest  on  the  purchase-money  unpaid,  and 
that  the  auction-duty  was  to  be  borne  equally  by  the  ven- 
dor and  purchaser,  the  deposit  was  paid  by  the  purchaser, 
but  he  did  not  pay  any  part  of  the  auction-duty,  and  the 
Court  compelled  him  to  pay  interest  on  half  of  the  amount 
of  the  auction-duty  at  five  per  cent.,  on  the  ground  that 
the  sum  paid  into  the  hands  of  the  auctioneer  by  the  pur- 
chaser had  been  less  by  the  moiety  of  the  auction-duty 
than  it  ought  to  have  been  ;  and  the  circumstance  that 
(*)the  auctioneer  had  applied  the  deposit  in  payment  of 
the  auction-duty  was  considered  as  of  no  weight(p). 

In  the  case  of  timber  on  an  estate  to  be  taken  at  a 
valuation,  interest  on  the  purchase-money  will  only  com- 
mence from  the  valuation,  although  the  interest  on  the 
purchase-money  for  the  estate  itself  may  be  carried  a 
great  way  back,  because  surveyors  always  value  timber 
according  to  its  present  state  ;  and  the  augmented  value 
of  the  timber  by  growth,  is  an  equivalent  for  the  interest 
from  the  time  of  the  contract  to  the  making  of  the  valua- 
tion(g').  But  this,  which  was  a  good  reason  during  the 
war,  will  not  in  all  times  justify  the  withholding  of  inte- 
rest. Many  cases  have  occurred  in  which  tho  augmented 
value  by  growth  between  the  time  of  entering  into  the 
contract  and  the  completion  of  it,  has  not  been  equal  to 
the  depreciation  in  the  market  price  of  the  timber  during 
the  same  period. 

(p)  Townshend  v.  Townshend,  2  Russ.  303. 

(g)  Waldron  v.  Forester,  Excheq.  June  30,  1807,  MS.     Vide  infra. 

(*8) 


OF  liSTEREST.  J  J 

Upon  the  sale  of  an  estate  in  possession,  under  the 
order  of  a  court  of  equity,  the  rule  is,  that  the  purchaser 
is  entitled  to  the  possession  or  rents  from  the  quarter-day 
preceding  his  purchase,  paying  his  money  before  the  fol- 
lowing one(r). 

Where  a  reversion  is  sold  under  the  order  of  a  court 
of  equity,  interest  must  be  paid  from  the  time  of  his  pur- 
chase(5).  And  the  same  rule  applies  to  an  annuity,  from 
which  time  only  the  purchaser  is  entitled  to  receive  the 
annLiity(/). 

(*)Formerly  the  practice  seems  to  have  been,  where 
estates  for  life  dropped  in  between  a  person  being  re- 
ported the  best  purchaser,  before  a  master,  and  his  taking 
possession,  to  direct  the  purchaser  to  make  some  com- 
pensation in  consideration  of  the  estate  being  bettered, 
or  otherwise  to  go  before  a  master  again,  and  the  estate 
to  be  put  up  for  a  new  bidding(M),  but  the  rule  is  now 
settled  as  above  stated,  and  the  purchaser,  from  the  time 
the  report  is  or  might  be  confirmed,  is  entitled  to  any 
benefit  by  the  dropping  of  lives,  or  the  like. 

In  Kenny  v.  Wrenham,  a  life-annuity  was  sold  on  the 
18th  of  April  1818,  for  280/.  to  be  paid  by  instalments  : 
200/.  in  October  1818,  and  the  residue  on  or  before 
1st  January  1819.  It  was  held  that  the  purchaser  was 
entitled  to  the  annuity  from  the  time  of  payment  of  the 
last,  and  not  from  that  of  the  first  instalment  of  the 
price(a;). 

If,  subsequently  to  a  written  contract,  an  agreement  be 

(r)  Supra,  p.  61.     See  Mackzell  v.  Hunt,  2  Mad.  34,  n. 

(«)  Ex  parte  Manning,  2  P.  Wnis.  412  ;  Child  v.  Lord  Abingdon,  1 
Ves.  jun.  94  ;  Twigg  i?.  Fifield,  13  Ves.  jun,  517;  but  see  Davy  r. 
Barber,  2  Atk.  489  ;  Blount  u.  Blount,  3  Atk.  636  ;  Growsock  v.  Smith, 
3  Anstr.  877  ;  Trefusis  v.  Lord  Clinton,  2  Sim.  359. 

(0   Twigg  r.  Fifield,  13  Ves.  jun.  517. 

(u)   Blount  V.  Blount,  3  Atk.  636.     See  Davy  v.  Barber,  2  Atk.  489. 

(x)  6  Madd.  355. 

(*9) 


12 


OF  INTEREST. 


made,  that  the  purchaser  shall  pay  interest  on  the  pur- 
chase-money from  a  particular  time,  and  the  agreement 
is  reduced  into  writing,  but  signed  by  the  vendor  only ; 
yet,  if  the  contract  has  been  in  part  performed,  the  pur- 
chaser will  be  bound  by  the  subsequent  agreement(?/). 

If  a  purchaser  make  payments  to  a  seller  exceeding 
the  interest  due  on  the  purchase-money,  of  course  rests 
must  be  made,  and  the  balance  only  will  carry  inte- 
rest(2)(270). 

Where  a  leasehold  estate  is  sold,  and  possession  is  not 
delivered  to  the  purchaser,  if  any  delay  occurs,  as  it 
would  not  be  just  to  make  the  purchaser  pay  the  whole 
purchase-money,  after  j)art  of  tiie  term  is  elapsed,  without 
his  having  derived  any  benefit  from  the  estate,  the  Court 
will  compel  the  vendor  to  pay  a  rent  in  respect  of  his 
(*)occupation  of  the  estate :  and  the  purchaser  to  j)ay  in- 
terest on  the  purchase-money  during  the  delay(a). 

If  a  tenant  for  years,  at  a  rent,  with  an  option  to  pur- 
chase the  fee,  declare  his  option,  he  is  entitled  to  retain 
the  rent  from  that  time,  and  in  lieu  of  it  must  be  charged 
with  interest  upon  his  purchase-money(6). 

And  where  a  purchaser  has  not  been  in  possession  of 
the  estate,  and  the  seller  receives  interest,  he  will  be  com- 
pelled to  pay  not  only  the  rent  which  he  has  received, 
but  that  which  without  his  wilful  default  he  might  have 
received(c). 

In  a  late  case,  where  the  contract  had  been  delayed 
upwards  of  fifteen  years,  by  the  default  of  the  selFer,  who 

(y)  Owen  v.  Davies,  1  Ves.  82. 
(r)    Griffith  i'.  Heaton,  1  Sim.  &  Stn.  271. 
(a)    Dyer  v.  Hargrave,  10  Ves.  jun.  505. 
(6)  Townley  v.  Bedwell,  14  Ves   591. 

(c)  Aclandu.  Saisford,  2  Mer.  28  ;  Wilson  v.  Clapham,  MS.  ;  1  Jac. 
&  Walk.  36,  S.  C. 

(270)  See  Connecticut  v.  Jackson,  1  Johns.  Ch.  Rep  13,  17. 
Stou^hton  V.  Lynch,  2  Johns.  Ch   Rep.  209. 


■ « 


i 


OF  INTEREST. 


13 


had  received  one  third  of  the  purchase-money,  and  also 
all  the  rents  of  the  estate,  Sir  Thomas  Plumer,  Master 
of  the  Rolls,  compelled  the  seller  to  account  not  only  for 
the  rents,  but  for  interest  at  four  per  cent,  upon  one  third 
of  them(d). 

Where,  however,  interest  is  more  in  amount  than  the 
rents  and  profits,  and  it  is  clearly  made  out  that  the 
delay  was  occasioned  by  the  vendor,  to  give  effect  to  the 
general  rule  would  be  to  enable  the  vendor  to  profit 
by  his  own  wrong ;  and  the  Court  therefore  gives  the 
vendor  no  interest,  but  leaves  him  in  possession  of  the 
interim  rents  and  profits(e)  ;  and  therefore  where  a  good 
title  is  not  shown  until  a  given  period,  the  purchaser 
will  pay  interest  only  from  that  period,  and  he  will  of 
course  take  the  rents  from  the  same  time. 

(*)But  where  there  is  an  express  stipulation,  that  if 
the  conveyance  is  not  executed,  and  the  purchase-money 
paid  by  the  day  named,  interest  shall  be  paid  until  the 
purchase  is  completed,  it  has  been  held  that  the  terms  of 
that  stipulation  apply  to  every  de\ay(f). 

In  the  case  of  Monk  v.  Huskisson(^),  however,  the 
contract  fixed  a  day  for  the  conveyance  to  be  executed, 
and  provided  that  the  Crown,  on  payment  of  the  purchase- 
money,  should  be  entitled  to  the  rents  from  that  day.  The 
contract  then  provided,  "  that  if,  by  reason  of  any  unfore- 
seen or  unavoidable  obstacles,  the  conveyance  cannot 
be  prepared  or  perfected  for  execution  on  the  day  named, 
the  Crown  should  pay  interest  for  the  purchase-money 
from  that  day   (from  which  time  His  Majesty  is  to  be 

(d)  Burton  v.  Todd,  Todd  v.  Gee,  31  Mar.  1818,  MS.  Appendix, 
No.  21.  See  Lacon  v.  Mertins,  3  Atk.  1  ;  12  Ves.  jun.  28  ;  Wild  i'. 
Fort,  4  Taunt  334. 

(e)  Esdaile  v.  Stephenson,  1  Sim.  &  Stu.  122  ;  Paton  v.  Rogers,  6 
Madd.  266  ;  Jones  v.  Mudd,  4  Russ.  118. 

(/)  S.  C. 

ig)  4  Russ.  121  n. 

(*11) 


14 


OF  INTEREST. 


entitled  to  the  rents  and  profits),  after  the  rate  of  five  per 
cent,  per  annum,  until  the  completion  of  the  assurances." 
The  title  was  not  made  out  until  a  much  later  period  than 
the  day  named,  and  Sir  John  Leach,  Master  of  the  Rolls, 
gave  the  sellers  interest  only  from  the  time  when  a  good 
title  was  shown.     Upon  a  re-argument,  it  was  submitted 
that  the  express  stipulation  governed  the  case  ;  but  the 
Master  of  the  Rolls  held  that  the  effect  of  the  stipulation 
was  not  to  give  interest  when  interest  would  otherwise  not 
have  been   payable,  but  to  fix  the  rate  of  the  interest  to 
which  the  vendors  might  be  entitled,  at  five  per  cent  instead 
of  four  per  cent.     But  in  Oxenden  v.  Lord  Exmouth(^), 
the  condition  was,  that  if  from  any  cause  whatever  (ex- 
cept the  wilful  default  of  the  vendor),  the  completion  of 
the   purchase  made   by  any  purchaser  should  be  delayed 
beyond  the  26th  of  December,  the  purchasers  respectively 
so  making  delay  should  pay  interest  to   the  vendor,  after 
the  rate  of  five  per  cent.,  per  annum  from  that  time  till  the 
(*)completion  of  the  purchase,  on  the  residue  then  unpaid 
of  the  purchase-money.     The  whole  estate  was  sold  by 
private   contract.      The   purchaser,  when    the    time  ap- 
pointed for  completing  the  contract  arrived,  insisted  that 
the  contract  was  no  longer  binding,  and  took,  besides, 
several  objections.     Thereupon  the  vendor  filed  a  bill  for 
a  specific  performance,  and  after  a  severe  contest,  in  the 
Master's    office,  the    Master    reported   in   favor   of  the 
title,  and  that  a  good  title  was  shown  before  the  filing  of 
the  bill.     Exceptions  were  taken  both  as  to  the   title  and 
the  time  of  showing  it.     The  former  was  over- ruled,  but 
the  latter  allowed.     But   as  the  Vice-Chancellor  consi- 
dered that  the  suit  was  rendered  necessary  by  the  con- 
duct of  the  purchaser,  independently  of  title,  he  held  that 
there  was  no  wilful  default  within  the  meaning  of  the 

[h)  V.  C.  13  Nov.  1833.  MS. 
(*12) 


OF  INTEREST. 


15 


condition,  and  therefore  that  interest  at  five  per  cent,  was 
payable  from  the  day  named. 

In  a  case  where  a  public-house  was  sold,  with  the 
goodwill  and  the  licences,  and  the  furniture,  stock,  &c. 
were  to  be  taken  at  a  valuation,  and  the  purchase  to  be 
completed  at  a  day  named,  but  the  seller  continued  to 
carry  on  the  trade  beyond  that  day,  although  the  valua- 
tions were  made,  the  purchaser  objecting  to  the  title  : 
The  purchaser  was  held  bound  to  perform  the  contract ; 
and  the  principle  was  followed  up  by  charging  the  pur- 
chaser with  interest  on  the  purchase-money  and  valua- 
tion, and  with  the  money  expended  in  the  business,  and 
giving  him  the  produce  of  the  business,  and  the  purchaser 
was  to  have  the  present  stock  in  trade.  But  upon  appeal, 
it  was  decided  that  the  purchaser  was  nat  liable  for  the 
transactions  of  the  trade,  and  was  only  to  pay  for  so  much 
of  the  original  stock  in  trade  as  could  be  delivered  to 
him,  and  was  not  bound  to  take  the  new  stock ;  but  the 
purchaser  was  charged  with  the  rent,  taxes,  and  other 
necessary  outgoings  of  the  premises  since  the  time  ap- 
pointed (*)for  performance  of  the  contract,  with  interest 
thereon,  and  he  was  refused  an  occupation-rent  which  he 
claimed  from  the  seller(i). 

The  purchaser  never  pays  interest  on  the  deposit, 
although  by  his  default  the  seller  may  have  been  prevent- 
ed from  receiving  it  from  the  auctioneer(A:). 


It  frequently  happens,  that  part  of  the  purchase-money 
is  left  in  the  hands  of  the  purchaser,  for  the  purpose  of 
paying  off  incumbrances  at  some  distant  period ;  and,  in 
that  case,  the  purchaser  must  pay  interest  for  it  to  the 
vendor(/). 

(t)   Dakin  v  Cope,  2  Russ.  170. 

{k)  Bridges  v.  Robinson,  3  Mer.  694. 

(0  Hughes  V.  Kearney,  1  Scho.  &  Lef.  132. 

(*13) 


|g  OF  INTEREST. 

In  Comer  v.  Walkley(wi),  it  appeared,  that  a  suqi  was 
left  in  the  purchaser's  haiids,  at  interest,  as  an  indemnity 
against  an  incumbrance.  The  purchaser  afterwards  paid 
part  of  the  sum  to  the  vendor  ;  notwithstanding  which, 
the  purchaser  and  his  devisees  continued  to  pay  interest 
on  the  whole  for  many  years.  A  bill  was  at  length  filed 
to  compel  payment  of  the  residue  of  the  sum  deposited  ; 
and  the  mistake  being  admitted,  the  Master  was  directed 
to  take  annual  rests  of  the  over-payments,  and  to  compute 
interest  thereon  at  five  per  cent.,  and  the  amount  of  the 
over-payment  and  interest  to  be  deducted  from  the  sum 
which  would  be  found  due  from  the  purchaser. 

Where  a  purchaser  is  entitled  to  recover  at  law  a  de- 
posit paid  by  him  to  the  vendor,  he  can  also  recover  inte- 
rest on  it  from  the  time  it  was  paid,  without  an  express 
agreement. 

But  where  he  proceeds  against  the  auctioneer  to  whom 
the  deposit  was  paid,  he  cannot  recover  interest  unless 
under  particular  circumstances ;  e.  g.  where,  when  the 
title  was  made  out,  if  the  auctioneer  was  called  upon  to 
(*)pay  it  over,  and  refused,  he  might  be  liable  from  that 
time,  or  perhaps  it  was  said,  if  he  actually  made  interest 
of  the  deposit(7i).  An  auctioneer  ought  not  to  be  liable 
generally  to  interest :  for  an  auctioneer  is  bound  to  keep 
a  deposit  till  the  execution  of  the  contract,  as  a  banker 
or  depositary  of  it :  for  which  reason  it  seems  doubtful 
whether,  if  he  actually  made  interest  of  it,  he  ought  to  be 
compelled  to  pay  interest(o). 

(m)   Reg.  Lib.  A.  1784,  fo.  625. 

(«)  Farquhar  v.  Farley,  7  Taunt.  592  ;  Lee  v.  Munn,  8  Taunt.  45  ; 
1  Moore,  481  ;  Curling  v.  Shuttleworth,  6  Bing.  121  ;  3  Moo.  &  P. 
368,  S.  C. 

(o)  See  Lord  Salisbury  v.  Wilkenson,  8  Ves.  jun.  48 ;  and  3  Bro. 
C.  C.  43  ;  14  Ves.  jun.  509,  cited.  See  also  Browne  v.  Southhouse, 
3  Bro.  C.  C.  107;  sed  vide  Willis  r.  the  Commissioners  of  Appeals  in 
Prize  Causes,  6  East,  22.     Gaby  v.  Driver,  2  Yo.  &  Jerv.  549. 

(-*14) 


OF  INTEREST. 


17 


The  non-liability  of  the  auctioneer  was  solemnly  de- 
cided  in   Harrington  v.  Hoggart()yJ,  although  the  seller, 
but  without  the  concurrence  of  the  purchaser,  gave  him 
notice  to  invest  the   deposit.     Lord  Tenterden,  C.  J.,  in 
delivering  judgment,  said,   "  there  is  an  essential  distinc- 
tion between   the  character  of  an   agent   and   that  of  a 
stakeholder.     The  case  of  Rogers  v.  Boehm(^)  was  the 
case   of  an   agent :  and  what   Lord   Kenyon    there  said, 
must  be  understood  to  apply  to  a  person  filling  that  cha- 
racter.    If  an  agent  receive  money  for  his  principal,  the 
very  instant  he  receives  it,  it   becomes  the  money  of  his 
principal.     If,  instead   of  paying  it  over  to  his   principal, 
he  thinks  fit  to  retail  it,  and  makes  a  profit  of  it,  he  may, 
under  such   circumstances   as   occurred   in  that  case,  be 
liable  to  account  for  the  profit.     Here   the  defendant  is 
not  a  mere  agent,  but  a  stakeholder.     A  stakeholder  does 
not  receive  the  money  for  either  party  ;  he  receives  it  for 
both  ;  and  until  the  event  is  known,  it  is  his  duty  to  keep 
it  in  his  own  hands.     If  he  thinks  fit   to  employ  it,  and 
make  interest  of  it,  by  laying  it  out  in  the  funds  or  other- 
wise, (*)and   any  loss  accrue,  he  must   be  answerable  for 
that  loss  ;  and  if  he  is  to  answer  for  the  loss,  it  seems  to 
me   he   has  a  right  to  any  intermediate  advantage  which 
may  arise.     The  defendant  here  has  not  laid  out  or  made 
a  profit  of  the  plaintiff 's  money  ;  for  at  the  time  he  laid 
it  out  it  was  not  the  plaintiff's,  and  it  was  doubtful  whe- 
ther it  would  ever  become  so  or  not.     Then. there  is  in  this 
case   the  special  circumstance   of  the  requisition   by  Sir 
John  Harrington  to  the  defendant,  that  he  should  lay  out 
the  money.     The  answer  given  to  that  was,  "  I  will  do  it 
if  Mr.  Secretan,  the  purchaser,  will  consent ;"  which  was 
saying,  in  effect,  though   not  in  words,  "  I  am  a  stake- 
holder :  I  am  answerable  to  Mr.  Secretan  for  the  money, 


(p)    1  Barn  &  Adolph.  677. 
(«/)   2  Esp.  702. 


VOL.    II.  .3  (*1.5) 


10  OF  INTEREST. 

or  I  may  be  in  the  result,  and  I  cannot  without  his  con- 
sent, therefore,  do  what  jou  ask."  Mr.  Secretan's  consent 
was  never  obtained.  As  to  the  offer  of  an  indemnity,  it 
was  not  insisted  upon  ;  and  it  could  not  well  be  insisted 
that  any  person  is  bound  to  take  the  indemnity  of  an- 
other. Therefore  that  special  circumstance,  in  my  opi- 
nion, does  not  take  the  case  out  of  the  general  rule, 
or  deprive  the  defendant  of  the  character  of  a  stakeholder, 
or  of  the  advantages,  if  there  be  any,  which  belong  to 
that  character,  nor  exempt  him  from  the  obligations 
arising  from  it.  As  to  the  cases  that  have  been  cited 
upon  this  subject,  there  certainly  is  none  in  which  in- 
terest has  been  recovered  from  an  auctioneer.  The  strong 
inclination  of  Lord  Eldon's  opinion  was,  that  it  could  not 
be  recovered  in  this  particular  case,  even  although  it 
should  appear  that  a  profit  had  been  made.  By  deciding 
now,  that  the  defendant  is  not  liable,  we  certainly  do 
not  vary  from  any  principle  which  has  been  laid  down 
by  a  Judge  in  equity,  or  make  the  law  in  this  Court 
different  from  the  rule  in  equity.  I  have  observed,  that 
there  is  no  case  in  which  interest  has  been  recovered 
against  an  auctioneer.  There  has  been,  as  there  may 
(*)well  be,  a  recovery  of  interest  by  the  purchaser  against 
the  vendor,  where  the  latter  has  not  been  able  to  com- 
plete his  contract ;  but  that  has  been  as  part  of  the  da- 
mage which  the  purchaser  sustained  by  the  non-com- 
pletion of  the  contract.  Part  of  that  damage  is  the  loss 
of  the  use  of  that  money,  which  in  the  mean  time  has 
been  lying  idle  in  the  hands  of  the  auctioneer.  There 
may  be  cases  also  in  which  the  vendor  may  have  a  right 
of  action  for  damages  against  a  purchaser  who  has  failed 
to  complete  his  contract.  But  there  was  no  authority 
to  show  that  an  auctioneer  is  liable  to  pay  interest  on  a 
deposit." 

If  interest  be  recovered  against  an  auctioneer,  and  he 

(*16) 


OF  INTEREST. 


19 


himself  be  not  in  fault,  he  may  recover  it  from  the 
vendor(r). 

And  where  the  statute  of  limitations  has  run,  and  it  is 
pleaded,  but  the  auctioneer  pays  the  deposit  into  court, 
he  cannot  be  compelled  to  pay  interest ;  although,  but 
for  the  statute,  the  deposit  uould  have  carried  interest, 
as  the  payment  of  the  principal  does  not  raise  any  implied 
promise  to  pay  the  interest(5). 

And  where  the  purchaser  recovers  the  deposit  only 
from  the  auctioneer,  he  may,  in  an  action  against  the 
seller,  recover  interest  on  it,  and  the  expenses  of  in- 
vestigating the  title,  under  an  averment  of  special 
damage(/). 

If  a  vendor  cannot  make  a  good  title,  and  the  pur- 
chaser's money  has  been  lying  ready,  without  interest 
being  made  by  it,  the  vendor  must  pay  interest  to  the 
purchaser(w). 

(*)Thus  the  law  seemed  to  stand  upon  the  decided  ca- 
ses, and  the  practice  appeared  to  be  conformable  to  it. 
But  in  consequence  of  some  general  rules  as  to  interest, 
which  were  laid  down  by  Lord  Ellenborough  in  some  ca- 
ses at  nisi  prius^  it  was  thought,  by  some,  that  interest 
could  not  be  recovered  in  many  cases  in  which  it  had  for- 
merly been  obtained(a').  These  rules,  however,  were  not 
intended  to  embrace  every  possible  case  ;  for  it  was  not 
denied  that  interest  may  be  recovered  upon  an  implied 
contract  for  payment  of  it(2/) ;  and,  accordingly,  in  a 
case  before  Lord  Ellenborough  at  7iisi  prius,  where  the 

(r)  See  Spurrier  v.  Elderton,  6  lisp.  Ca.  1.  Qu.  it"  tlie  case  can 
arise  after  the  decision  in  Harrington  r.  Hoggart. 

(s)   Collyer  v.  Willock,  4  Bingh.  313  ;    12  Moo.  657,  S.  C. 

(/)  Farquhar  r.  Farley,  7  Taunt.  692  ;   1  Moo.  322. 

(«)  Fieureau  v.  Thornhill,  2  Black.  1078. 

(x)  De  Havilland  v.  Bowerbank  ;  Crocktbrd  v.  Winter,  1  Camp.  Ca. 
30,  124  ;  De  Bernales  v.  Fuller,  2  Camp.  Ca.  426. 

(y)  Calton  o.  Bragg,  15  East,  213. 

(*17; 


2Q  OF  INTEREST. 

title  was  bad,  and  the  j)urchaser,  in  his  action  for  reco- 
very of  the  deposit,  declared  specially,  and  alleged  by 
way  of  special  damage,  that  by  reason  of  a  good  title 
not  being  made,  he  had  lost  and  been  deprived  of  the  use 
of  the  money  which  he  had  deposited,  according  to  the 
conditions  of  sale.  Lord  Ellenborough  said,  that  they  had 
lately  held  that  interest  was  not  recoverable  on  money 
lent,  without  some  eVidence  of  a  contract  for  that  pur- 
pose ;  but  he  thought  that  the  plaintiff,  in  the  case  before 
him,  ought  to  be  allowed  interest,  as  special  damage  from 
the  day  when  the  purchase  ought  to  have  been  com- 
pleted. He  averred  in  his  declaration,  that  by  the  de- 
fendant's breach  of  contract  he  had  since  lost  the  use  of 
his  money,  and  he  had  proved  that  averment.  There 
seemed  to  be  no  reason,  therefore,  why  this  loss  should 
not  be  compensated  to  him  by  the  allowance  of  interest 
on  his  deposit,  and  the  purchaser  had  a  verdict  accord- 
ingly (2)(271).  This  decision  agrees  with  the  general 
practice  of  the  Profession,  and  has  been  since  followed  by 
(*)the  Court  of  Common  Pleas(a)  ;  but  yet  Mansfield,  C. 
J.  ruled  otherwise  at  7iisi  prius  before  the  last  decision  ; 
and  in  a  later  case  at  nisi  prius,  Lord  Tenderden  said,  he 
did  not  know  of  any  case  of  this  kind  in  which  interest 
had  been  allowed(6).  The  legal  right  to  recover,  there- 
fore, is  left  in  great  doubt  upon  the  authorities. 

By  a  recent  statute(c)  it  is  enacted,  that  upon  all  debts 
or  sums  certain,  payable  at  a  certain  time  or  otherwise, 
the  jury  on  the  trial  of  any  issue,  or  on  any  inquisition 
of  damages,  may,  if  they  shall  think  fit,  allow  interest  to 

(z)  Do  Bernales  v.  Wood,  3  Camp.  Ca.  258. 

(a)  Faiquhar  i'.  Farley,  7  Taunt.  592  ;   1  Moo.  322. 

(b)  Bradshaw  v.  Bennett,  5  Carr.  &-  Pay.  48. 

(c)  3  &  4  W.  4,  c.  42,  s.  28. 


(271)   See  Ferit  v.  WalMs,  2  Dall.  252.    See  also,  United  States  v. 
Giirney,  4  Cranch,  333.     Lightfoot  v.  Price,  4  Hen.  &  Munf.  431. 
(*18) 


OF  INTEREST. 


21 


the  creditor,  at  a  rate  not  exceeding  the  current  rate  of  in- 
terest, from  the  time  when  such  debt  or  sums  certain  were 
payable,  if  such  debt  or  sums  be  payable  by  virtue  of  some 
written  instrument  at  a  certain  time  ;  or  if  payable  other- 
wise, then  from  the  time  when  demand  of  payment  shall 
have  been  made  in  writing,  so  as  such  demand  shall  give 
notice  to  the  debtor  that  interest  will  be  claimed  from  the 
date  of  such  demand  until  the  term  of  payment,  with 
a  proviso,  that  interest  shall  be  payable  in  all  cases  in 
which  it  is  now  payable  by  law. 

Where  the  biddings  before  a  master  are  opened,  the 
purchaser  will  be  allowed  interest  at  the  rate  of  4  per 
cent,  per  annum,  on  such  part  of  the  purchase-monies  as 
the  Master  shall  find  to  have  lain  dead((/). 

Where  the  purchaser  pays  into  court  a  sum  of  money 
on  account,  and  in  part  of  the  purchase-money,  which  is 
invested  at  the  request  of  the  vendor(e),  it  is  the  money 
of  the  vendor,  who  is  to  take  the  chance  of  the  rise  or  fall 
of  the  stocks(y). 

(*) Where  a  purchase  by  a  trustee  is  set  aside,  and  the 
estate  restored  to  the  cestui  que  trust,  the  purchaser  is 
allowed  interest  on  the  money  paid  by  him,  and  is  com- 
pelled to  pay  a  rent  for  the  estate  during  his  enjoyment 
of  itfe). 

But  where  a  sale  is  annulled  on  account  of  notice  in  the 
purchaser  of  a  prior  claim,  and  he  is  decreed  to  account 
for  the  rents,  it  seems  that  he  shall  not  be  charged  with 
interest  on  the  rents(/i). 

Where  a  purchase  was  set  aside  on  the  ground  of  fraud, 
and  the  purchaser  was  decreed  to  pay  an  occupation-rent, 

(d)  This  was  directed  on  opening  the  biddings  fbr  General  Birch's 
estate,  MS. 

(e)  This  fact  does  not  appear  in  the  Report.     S.  C.  MS. 
(/)   Gellr.  Watson,  2  Sim.  &  Stu.  402. 

{g)  Infra,  ch.  14. 

{h)  Macartney  v.  Blackwood,  Irish  Term  Rep.  602. 

(*19) 


22 


OF  INTEREST. 


and  to  be  repaid  his  purchase-money  and  interest,  annual 
rents  were  directed,  so  that  the  excess  of  rent  beyond  the 
interest  might  go  in  reduction  of  the  capital(i). 

An  agreement,  that  if  the  purchase-money  be  not  paid 
at  the  time  stipulated,  the  purchaser  shall  pay  a  rent  for 
the  estate,  exceeding  the  legal  interest  of  the  money,  is 
not  usurious(A;)(272). 

(i)  Donovonr.  Frickcr,  1  Jack.  165. 

{k)  Spurrier  v.  Mayoss,  1  Ves.  jun.  527  ;  4  Bro.  C.  C.  28. 


'  (272)  The  subject  of  usury  came  under  consideration  in  the  late 
case  of  Dowdall  r.  Lenox,  2  Edw.  Ch.  R.  267,  where  one  NicoU  ap- 
plied to  the  defendant  for  a  loan  of  $60,000  in  order  to  undertake  a 
mercantile  adventure  ;  and  the  defendant  made  it  a  condition  of  the 
loan  that  $4,500  part  of  a  larger  sum  owing  by  Nicoll  to  the  defendant ; 
and  which  had  been  owing  ever  since  his  failure  in  business  years  be- 
fore. And  it  was  part  of  the  agreement  that  both  sums  were  to  be  in- 
cluded in  a  bond  executed  by  Nicoll  and  Dowdall  bearing  interest.  The 
property  also  was  to  be  insured  for  the  benefit  of  defendant;  and  the 
bill  of  lading  and  invoice  to  come  home  under  cover  to  defendant :  The 
V.  Chan,  held,  that  the  transaction  was  not  usurious.  He  admitted  it 
to  be  a  general  rule — that  where  the  transaction  is  substantially  a  loan 
upon  an  understanding  that  the  money  or  thing  lent  is  to  be  returned  at 
all  events,  the  lender  cannot  lawfully  reserve  or  take  to  himself  any 
thing  in  the  shape  of  interest  or  profit  beyond  the  amount  of  interest  at 
the  legal  rate  ;  and  no  shift  or  contrivance  for  this  purpose  will  be  al- 
lowed to  take  the  case  out  of  the  statute.  But  he  proceeded  to  observe 
that — "  The  exceptions  to  the  rule  embrace  special  and  peculiar  cases, 
as  where,  under  some  circumstances,  the  lender  can  charge  commissions 
for  transacting  business  :  Nourse  v.  Prime,  7  J.  Ch.  R.  69  ;  or  where  a 
mortgagee  out  of  possession  stipulates  for  the  consignment  of  the  pro- 
duce of  the  estate  mortgaged  to  be  sold  by  him  on  commission  :  Bun- 
bury  V.  Winter,  1  J.  &  W.  255  :  Sayers  r.  Whitfield,  1  Knapp's  R. 
133. 

Some  of  the  most  frequent  instances  of  what  are  deemed  shifts  or 
contrivances  to  elude  the  statute  are,  where  the  loan  is  made  in  a  de- 
preciated currency  or  in  bonds,  notes  or  goods  of  a  less  value  than  their 
nominal  amount,  as  in  the  Bank  of  the  United  States  r.  Owens,  2  Pet. 
R,  527  ; — or  where  the  advance  of  money,  although  exhibiting  all  the 
characteristics  of  a  loan,  is  made  to  assume  the  form  of  a  purchase  of  a 
rent  charge  or  an  annuity  payable  out  of  lands  and   exceeding  lawful 


OF  INTEREST. 


23 


And  an  agreement  to  sell  an  estate  for  a  principal  sum, 
which,  with  interest  added  thereto  after  the  rate  of  61.  per 
cent,  per  annum,  for  the  time  the  notes  had  to  run,  was  se- 
cured by  certain  promissory  notes  according  to  the  contract, 
was  held  not  to  be  a  usurious  contract.  The  Lord  Chief 
Justice  said  that  the  case  arose  out  of  a  contract  for  the  sale 
of  an  estate,  and  not  for  the  loan  of  money.  The  agree- 
ment was  founded  partly  upon  what  was  considered  the 
present  price,  if  paid  for  at  a  future  day.  The  only  diffi- 
culty had  been  occasioned  by  calling  the  difference  between 
these  two  prices  interest ;  but  it  was  their  duty  to  look,  not 
at  the  form  and  words,  but  at  the  substance  of  the  transac- 
tion ;  and  as  on  the  one  hand  they  should  not  pay  attention 

interest  upon  the  sum  advanced  :  Lloyd  v.  Scott,  4  Pet.  R.  205.  And 
so,  likewise,  where  the  borrowing  of  money  is  accompanied  by  the 
grant  of  a  lease  by  the  borrower  to  the  lender ;  the  latter  taking 
advantage  of  the  necessities  of  the  former,  to  obtain  a  lease  at  a  rent 
less  than  the  fair  yearly  value  of  the  lands  or  upon  more  advantageous 
terms  than  he  otherwise  could  have  done  at  the  same  time  reserving  to 
himself  full  interest  upon  the  money  lent.  Moore  v.  M'Kay,  1  Beat. 
R.  282  ;  2  Molloy's  R.  134.  In  all  the  cases,  the  question  seems  to 
have  been  whether  the  substance  of  the  transaction  4vas  really  a  loan  of 
money  or  the  creation  of  a  debt,  whatever  might  be  the  form  of  the 
contract  ;  and  if  found  to  be  so,  then  whether  the  lender  or  payee  had 
stipulated  for  or  secured  to  himself,  by  means  of  the  loan  and  arising 
either  from  it  or  from  any  thing  connected  with  it  and  forming  a  part  of 
the  same  transaction,  any  profit  or  pecuniary  advantage  he  would  not 
otherwise  have  been  entitled  to  exceeding  the  rate  of  interest  allowed 
by  law.  That  this  is  the  test,  appears  likewise  from  the  language 
of  Judge  Johnson  in  2  Pet.  627  SH/>ra.  He  says,  "  a  profit  made  or 
loss  imposed  on  the  necessities  of  the  borrower,  whatever  form,  shape, 
or  disguise  it  may  assume,  where  the  treaty  is  for  a  loan  and  the  capital 
is  to  be  returned  at  all  events,  has  always  been  adjudged  to  be  so  much 
profit  taken  upon  a  loan  and  to  Le  a  violation  of  those  laws  which  limit 
the  lender  -to  a  specified  rale  of  interest."  So,  where,  in  connection 
with  the  loan  of  money  and  as  part  of  the  transaction,  the  lender  sells 
to  the  borrower,  while  in  embarrassed  circumstances,  bonds,  goods  or 
other  things  at  a  price  exceeding  their  real  value  and  includes  the  amount 
in  the  security  for  the  loan  :  Eagleson  v.  Shotwell,  i  J.  Ch.  535  ;  Mor- 
gan V.  Schermerhorn,  1  Paige,  Ch.  R.  544. 


24 


OF    INTEREST. 


(*)to  the  words  of  the  contract  if  the  substance  of  it  went 
to  defeat  the  provisions  of  the  statute  of  the  12  Anne,  c. 
16,  so  on  the  other  hand  they  ought  not  to  rely  upon  the 
words  so  as  to  defeat  the  contract,  if  in  substance  the 
transaction  was  legal.  It  appeared  to  him,  that  in  sub- 
stance this  was  a  contract  for  sale  of  the  estate  at  the 
price  of  20,800/.  to  be  paid  by  instalments  ;  in  that  there 
was  no  illegality  ;  the  defence  set  up  therefore  failed(/). 


II.  Where  interest  is  recovered  at  law,  it  is  always  at 
the  rate  of  5  jwer  cent.(m),  but  in  equity  the  rate  of  inte- 
rest allowed  is  4  j?er  cent.(n). 

In  Blount  v.  Blount(o),  Lord  Hardwicke  said,  the 
Court  would  give  such  interest  as  was  agreeable  to  the 
nature  of  the  land  purchased ;  but  this  seems  never  to  be 
taken  into  consideration,  nor  indeed  ought  it  to  be  ;  in- 
terest being  given  not  so  much  on  account  of  the  profits 
of  the  estate,  as  the  unjust  detention  of  the  purchase- 
money. 

In  Dickenson  v.  ReYon(p),  at  the  time  the  purchaser 
took  possession*of  the  estate,  it  was  agreed  he  should  pay 
interest  on  the  purchase-money,  but  no  rate  was  fixed. 
The  purchase-money,  however,  then  produced  5  per  cent., 
and  it  was  understood  between  the  parties  that  interest 

{I)  Beete  v.  Bigwood,  7  Barn.  &  Cress.  453  ;  1  Mann.  &  Ryl.  143, 
S.  C. 

(m)   See  now  3  &  4  W.  4,  c.  42,  s.  28,  supra. 

(7j)  Calcraft  v.  Roebuck,  1  Ves.  jun.  221  ;  Child  v.  Lord  Abingdon, 
1  Ves.  jun.  94 ;  Comer  v.  Walkley,  Reg.  Lib.  A.  1784,  fo.  626 ;  Pol- 
lexfen  v.  Moore,  Reg.  Lib.  B.  1745,  fo.  283,  at  the  bottom ;  Smith  v. 
Hibbard,  Chanc.  11  July  1789  ;  M'Queen  v.  Farquhar,  Lib.  Reg.  B. 
1804,  fol.  1095  ;  Browne  v.  Fenton,  Rolls,  June  23,  1807,  MS.,  and  see 
Lord  Rosslyn's  judgment  in  Lloyd  v.  Collet,  4  Ves.  jun.  609,  n  ;  Ac- 
land  V.  Gaisford,  2  Mad.  28  ;  Bradshaw  v.  Midgeley,  V.  C.  13  Nov. 
1817,  MS. 

{o)  3  Atk.  636. 

(p)    Supra,  vol.  2.  p.  6. 

(*20) 


OF  INTEREST,  25 

was  to  be  paid  at  that  rate  ;  and  although  this  under- 
standing (*)did  not  appear  by  any  note  or  writing,  the 
purchaser  was  decreed  to  pay  interest  at  5  per  cent. 

And  in  a  case  in  the  Court  of  Exchequer,  it  appeared 
that  one  tenant  in  common  had  sold  his  share  of  the 
estate,  and  of  the  timber,  to  the  other,  who  was  let  into 
possession,  but  no  stipulation  was  made  as  to  interest. 
The  purchase-money  was  not  paid.  A  bill  was  filed  by 
the  vendor  for  a  specific  performance,  and  a  motion  was 
made  that  the  purchase-money  might  be  paid  into  Court, 
or  a  receiver  appointed  of  the  estate  sold.  And  it  was 
accordingly  referred  to  the  Master  to  appoint  a  receiver, 
who  was  directed  to  pay  to  the  vendor,  out  of  the  rents, 
"  interest  after  the  rate  of  5  per  centum  per  ctnnum,  upon 
the  amount  of  the  purchase-money,  and  the  value  of  the 
timber  on  the  estate(z)."  This  cause  afterwards  came  to 
a  hearing,  when  a  specific  performance  was  decreed,  and 
the  purchaser  was  decreed  to  pay  interest.  A  question 
then  arose  as  to  the  quantum,  and  it  was  decreed,  that 
the  purchaser  should  pay  5  per  cent.,  although  it  was  in- 
sisted that  5  per  cent,  was  never  given,  particularly  when 
not  prayed  by  the  bill.  Lord  C.  B.  Macdonald  said,  that 
as  to  the  quantum,  he  conceived  that  nothing  less  than 
5  per  cent,  would  be  a  compensation  to  the  vendor,  and 
that,  indeed,  they  had  in  many  cases  lately  given  5  per 
cent,  interest,  and  the  reason  of  it  was  too  w-ell  founded 
to  need  any  discussion  :  a  person  would  always  find  it  to 
be  his  interest  to  delay  the  completion  of  his  purchase, 
when  he  knows  that  he  is  only  to  pay  A<  j^r  cent.,  and  can 
make  five  or  six  of  his  money.  Mr.  Baron  Thompson 
concurred.  Mr.  Baron  Graham  wished  there  had  been 
a  general  rule,  but  the  Courts  had  been  in  the  habit  of 
giving  5  per  cent,  where  there  was  delay.     Tiie  reasons 

(t)  Waldron  r.  Forester,  Exch.  4th  May  1804,  MS.  ;  Gaskarth  v. 
Lord  Lowther,  12  A'^es.  jun.  107;   and  see  i7).  603. 

TGI..    II.  4  (*21) 


Og  OF  INTEREST. 

(*)formerly  given  had  now  no  ground.  The  4>  per  cent, 
wh6n  established,  was  the  current  interest,  but  now,  it 
was  holding  out  an  inducement  to  persons  to  delay  the 
completion  of  contracts,  as  it  was  notorious,  that  money 
could  not  be  obtained  for  even  five.  Besides,  here  the 
Court  had  forejudged  the  question  in  making  the  former 
order,  although  that  was  without  prejudice.  Mr.  Baron 
Wood  concurred,  and  the  Court  carried  back  the  interest 
to  Lady-day  1802,  when  it  seems  they  thought,  upon  the 
construction  of  the  several  agreements  and  letters  which 
had  passed,  that  the  contract  ought  to  have  been  com- 
pleted(^). 

In  a  very  recent  case  5  jjer  cent,  was  decreed  to  be 
paid,  although  the  conditions  of  sale  were  silent  as  to 
interest.  The  purchaser  was  held  to  have  accepted  the 
title  by  taking  possession ;  and  the  Court  said,  that  they 
thought  where  a  purchaser  withheld  the  money  from  the 
seller,  he  ought  to  pay  such  interest  as  the  seller  might 
have  made  of  the  money  had  it  been  paid  to  him,  and  that 
this  had  frequently  been  done  by  Lord  Alvanley(/). 

However,  this  is  not  the  rule  of  the  Court  of  Chancery, 
nor  does  the  reasoning  apply  to  times  when  the  market 
rate  of  interest  is  below  5  per  cent.  And  accordingly,  in 
a  case  where  the  conditions  of  sale  stipulated  that  the 
purchaser  should  be  allowed  5  per  cent,  on  the  deposit 
if  a  title  could-  not  be  made,  but  did  not  contain  any 
other  stipulation  as  to  interest :  after  a  decree  in  a  bill 
by  the  seller  for  a  specific  performance,  upon  a  motion  to 
vary  the  minutes,  by  making  the  interest  payable  on  the 
purchase-money  5  per  cent.,  the  Vice-Chancellor  was  of 
opinion  that  the  general  rule  must  prevail,  and  that  the 
minutes  of  the  decree  were  correct,  confining  the  interest 

{k)  Excheq.  30th  June  1807,  MS. 

(/)  Burriell  v.  Brown,  Lord   C.  Baron  sitting  for  the  Master  of  the 
Rolls,  7  Feb.  1820,  MS.  ;   1  Jac.  and  Walk.  168. 
(*22) 


OF  COSTS. 


27 


(*)to  ^  per  cent.,  and  gave  the  purchaser  his  costs  of  op- 
posing the  niotion(m). 

The  same  rate  of  interest  seems  payable,  whether  the 
estate  be  sold  by  private  agreement,  or  by  a  Master  under 
a  decree  of  a  court  of  equity. 


As  connected  with  interest,  we  may  here  observe,  that 
if  the  completion  of  a  purchase  has  been  delayed  by  the 
state  of  the  title,  the  Court  will  compel  the  seller  to  make 
an  allowance  for  any  deterioration  which  the  lands,  hedges 
and  fences  have  suffered  by  unhusbandman-Iike  conduct 
and  mismanagement  since  the  date  of  the  contract(«). 

But  a  purchaser  is  not  entitled  to  any  allowance  for 
deterioration  after  he  took  possession,  or  after  there  was 
a  title  under  which  he  might  have  taken  possession (o). 

Where  in  a  specific-performance  suit,  the  purchaser, 
who  claimed  an  allowance  for  deterioration,  paid  his  pur- 
chase-money into  Court  under  an  order,  and  the  amount 
to  be  allowed  for  deterioration  was  afterwards  fixed,  he 
was  held  entitled  to  the  amount,  with  interest  from  the 
time  when  he  paid  his  money  into  court(/7). 

SECTION  II. 
Of  Costs. 


At  law,  the  costs  abide  the  event  of  the  action  by  the 
vendor  er  purchaser.      In  equity,  also,  the  person  who 

(m)  Thorp  v.  Freer,  H.  T.  1820,  MS. 

(n)  Foster  v.  Deacon,  3  Madd.  394,  and  several  cases  not  reported. 

(o)   Binks  v.  Lord  Rokeby,  2  Swanst.  226. 

(p)  Ferguson  v.  Tadman,  1  Sira.  530. 

(^23) 


2g  OF  COSTS. 

fails  in  the  suit  must  prima  facie  be  deemed  liable  to  the 
(*)costs.  But  still,  although  this  is  the  general  rule,  yet 
costs  in  equity  rest  entirely  in  the  breast  of  the  Court,  for 
the  prima  facie  claim  to  the  costs  may  be  rebutted  by  the 
particular  circumstances  of  the  case ;  and  it  is  for  the 
Court  to  decide  whether  those  circumstances  are,  or  are 
not,  sufficient  to  rebut  the  c\i\\m(q)(27^). 

If  a  purchaser  file  a  bill  for  a  specific  performance, 
"which  is  dismissed  because  the  defendant,  the  seller,  can- 
not make  a  title  ;  yet  the  bill  may  be  dismissed  with  costs 
against  the  defendant(r). 

If  the  vendor  file  a  bill  for  a  specific  performance,  which 
is  dismissed  because  he  cannot  make  a  title,  and  the  estate 
was  misrepresented  in  the  particulars,  although  without 
fraud,  he  must  pay  the  costs(5)(275).  If  the  estate  was 
misrepresented,  and  the  auctioneer  verbally  agreed  to 
allow  a  deduction  if  any  misrepresentation  should  appear, 
the  seller's  bill  would  be  dismissed,  with  costs,  if  he 
sought  to  compel  the  purchaser  to  take  the  estate  without 
any  allowance,  because  that  would  be  a  fraud.  But  if 
the  purchaser  do  not  resort  to  the  defence  set  up  by  his 
answer,  until  after  the  institution  of  the  suit,  that  is  a 
ground  not  to  give  costs(f).  ■*• 

Where   there  is  no  misrepresentation,  and  the  question 

(</)  Vancouver  v.  Bliss,  11  Yes.  jun.  458.  See  Scorbrough  r.  Bur- 
ton, Barnard.  Cha.  Ca.  255. 

(r)  See  and  consider  Benet  College  v.  Carey,  3  Bro.  C.  C.  390 ; 
Lewis  V.  Loxham,  3  Mer.  429. 

(s)  Vancouver  v.  Bliss,  nbi  sup. 

{t)  Winch  V.  Winchester,  1  A^es.  &  Beam.  375. 

(274)  See  JVicoll  v.  Trustees  of  Hiiniingion,  1  Johns.  Ch.  Rep.  166, 
182.  Alethodist  Episcopal  Church  v.  Jacques,  1  Johns.  Ch.  Rep.  65. 
Easthurn  v.  Kivh,  2  Johns.  Ch.  Rep.  317.  Getman's  Exrs.  v.  Beards- 
ley,  2  Johns.  Ch.  Rep.  274.  Williams  v.  fVilkins,  3  Johns.  Ch.  Rep. 
65.   Travis  V.  Waters,  on  appeal,  12  Johns.  Rep.  500. 

(275)  See  Butler  v.  O'Hear,  1  Des.  382,  400. 
(*24) 


OF  COSTS. 


29 


turns  upon  a  point  of  law,  upon  which  the  opinion  of  the 
Court  might  fairly  be  taken,  although  the  bill  be  dismissed 
against  the  vendor,  yet  it  will  be  without  costs(w)(276). 
If  a  purchaser  is  entitled  to  costs,  it  is  immaterial  that  the 
seller  was  only  a  trustee  for  sale(x). 

But  where  the  bill  is  dismissed  against  the  purchaser 
(*)vvith  costs,  yet  he  will  not  be  allowed  costs  of  objec- 
tions argued  before  the  Master,  but  abandoned  at  the 
hearing(7/). 

So  a  purchaser  is  considered  as  entitled  to  take  a  fair 
objection,  and  although  it  be  over-ruled,  yet  the  Court  will 
not  on  that  ground  give  costs(2)  :  but  this,  of  course, 
must  always  depend  upon  the  weight  which  the  Judge 
may  think  due  to  the  objection(a).  In  one  case,  indeed, 
Lord  Eldon  thought  that  as  the  title  was  forced  upon  the 
purchaser,  he  should  act  hardly  by  him,  by  not  giving  the 
title  the  credit  of  making  him  pay  the  costs,  for  it  would, 
he  said,  help  the  title.  As,  however,  the  vendor  had 
contended,  but  unsuccessfully,  that  the  purchaser  had 
done  acts  amounting  to  an  acceptance  of  the  title,  costs 
were  refused (6) (27 7). 

(u)   White  V.  Foljambe,  11  Ves.  jun.  337.     See  ibid.  463. 
(x)   Edwards  v.  Harvey,  Coop.  40. 
(y)  Hayes  v.  Bailey,  L.  C.  M.  T.  1821,  MS. 

(z)  Cox  V.  Chamberlain,  4  Ves.  jun.  631  ;  Stains  v.  Morris,  1  Ves. 
&  Beam.  8  ;   Sharpe  v.  Roahde,  2  Rose,  192. 

(a)  Burnaby  v.  Griffin,  3  Ves.  jun.  266  ;  Bishop  of  Winchester  v. 
Paine,  II  Ves.  jun.  195.  See  Powell  v.  Martyr,  8  Ves.  jun.  146; 
Fludyer  v.  Cocker,  12  Ves.  jun.  25  ;  Calverley  v.  Williams,  1  Ves. 
jun.  210. 

(b)  M'Queen  v.  Farquhar,  11  Ves.  jun.  467. 

(276)  In  Demarest  v.  Wrjtikoop,  3  Johns.  Ch.  Rep.  147,  KENT, 
Chancellor,  said,  "  It  is  not  usual  to  give  costs,  where  an  unfortunate 
claimant  has  color  of  claim,  and  is  barred  by  lapse  of  time."  And  see 
Lamar  v.  Jones,  3  Har.  &  M'Hen.  328. 

(277)  Where  a  plaintiff  had  probable  cause  for  seeking  the  aid  of  the 
court,  and  failed  in  establishing  his  title,  but  the  defendant  shewed  none, 

(*25) 


30 


OF  COSTS. 


Where  the  objection  to  the  title  has  already  been  de- 
cided in  a  former  cause,  of  which  the  purchaser  had  notice, 
the  purchaser  will  be  decreed  to  pay  the  costs  of  the 
suit(c). 

And  although  a  purchaser  may  fairly  object  to  a  title 
on  the  ground  of  a  doubtful  fact ;  yet  if  the  fact  is  found 
against  him,  he  cannot  claim  costs,  although  he  will  not 
be  compelled  to  pay  them.  This  was  decided  in  Thorpe 
V.  Freer(f/),  where  the  bankrupt  was  made  a  party  to  the 
suit,  to  establish  the  fact  that  he  had  not  executed  the  power 
before  his  bankruptcy.  He  demurred  to  the  bill,  as  he 
(*)might  be  examined  in  the  bankruptcy,  and  Sir  John 
Leach,  Vice-Chancellor,  allowed  the  demurrer.  He  was 
then  examined  before  the  commissioners,  and  upon  the 
examination  it  was  held  that  the  power  remained  unexe- 
cuted. Upon  these  grounds,  it  was  contended  on  behalf 
of  the  purchaser  that  he  was  entitled  to  his  costs,  as  it 
was  necessary  to  establish  the  fact,  but  they  were  refused 
to  him  on  the  ground  above  stated. 

In  a  case  where  the  Master  reported  that  the  abstract 
delivered  by  the  vendor  before  the  filing  of  the  bill  was 
sufficient,  but  he  found  that  the  purchaser  required  cer- 
tain evidence  in  support  of  the  abstract,  some  of  which 
was  necessary,  but  not  furnished,  and  some  not  necessary, 
the  Lord  Chancellor  held  that  both  of  the  parties  were  in 
the  wrong  ;  and,  upon  the  vendor's  bill,  his  Lordship  held 
tliat  no  costs  ought  to  be  given  on  either  side(€). 

Where  a  seller  does  not  make  out  his  title  until  after 
the  bill  is  filed,  he  is  liable  to  pay  the  costs  of  the  suit  up 

(c)  Biscoe  V.  Wilks,  3  Mer.  456. 

(d)  MS.   See  4  Madd.  466. 

(c)   Newall  V.  Smith,  1  Jac.  &  Walk.  263. 


or  no  belter  title  to  the  property  in  dispute,  the  bill  was  dismissed  with- 
out costs  on  either  side.  JVicoll  v.  Trustees  of  Htmtmgton,  1  Johns. 
Ch.  Rep.  183. 

(*26) 


OF  COSTS. 


31 


to  the  time  that  he  showed  a  good  title(/).  But  the 
Court  will  not  let  this  rule  operate  as  a  trap  for  the  seller  ; 
and  if  further  abstracts  are  furnished  after  the  bill  is  filed, 
will  inquire  whether  they  are  material.  So  as  to  evi- 
dence. But,  as  to  evidence,  much  depends  upon  the  fact 
whether  further  evidence  was  required  by  the  purchaser. 
In  one  case  an  act  of  parliament,  for  releasing  the  estate 
from  certain  portions,  was  obtained  after  the  filing  of  the 
bill.  The  Master  found  that  a  good  title  was  shown 
when  the  act  was  delivered  to  the  purchaser.  The  pur- 
chaser claimed  the  costs  to  a  later  day,  on  the  ground  that 
the  act  recited  a  release  by  deed  of  other  portions,  an 
(*)abstract  of  which  had  not  been  furnished.  The  Vice- 
Chancellor  held  that  the  act  was  tantamount  to  an  ab- 
stract, and  that  the  purchaser  should  have  called  for  an 
abstract  for  the  deed,  if  he  had  intended  to  insist  upon 
the  want  of  it,  an  as  objection(,o-). 

Where  the  purchaser  might,  if  he  pleased,  have  had 
the  evidence  furnished  to  him  before  the  bill  is  filed, 
although  the  Master  reports  that  the  title  was  not  made 
out  until  the  evidence  was  produced,  the  purchaser  will 
have  to  pay  the  costs(/i).  And  in  Oxenden  v.  Lord 
Exmouth(i),  the  Court  held  that  the  suit  became  neces- 
sary by  the  improper  conduct  of  the  purchaser ;  and 
therefore  the  Vice-Chancellor,  although  he  had  allowed 
as  a  fact  that  the  title  to  a  part  of  the  estate  was  not 
shown  until  after  the  filing  of  the  bill,  yet  held  that 
as  the  purchaser's  misconduct  rendered  the  suit  neces- 
sary, he  must  pay  all  the  costs. 

In  the  case  of  Smith  v.  Leigh(/c),  the  Master  found  that 

(/)  Wilson  V.  Allen,  1  Jac.  &  Walk.  623,  and  many  MS.  cases. 
See  Wynu  i'.  Morgan,  7  Ves.  jun.  202  ;  CoUinge's  case,  3  Ves.  & 
Bea.  143,  n.  (a)  ;  Lewin  r.  Guest,  3  Russ.  325. 

(g)  Emery  r.  Growcock,  1821,  MS. 

(h)   Long  V.  Collier,  4  Russ.  269  ;  Holwood  v.  Bailey,  271. 

(»•)   13  Nov.  1833.  MS.  supra,  p.  11. 

(A.)  V.  C.  10  Aug.  1821,  MS. ;  and  see  Lill  v.  Robinson,  1  Beatty,86. 

(*27) 


32  OF  COSTS. 

ihe  seller  could  make  a  title  in  February  1820,  which 
was  subsequently  to  filing  the  bill.  To  the  Master's  re- 
port the  purchaser  took  an  exception,  and  elected  to  have 
a  case  sent  to  law,  which  the  Vice-Chancellor  granted  as 
a  matter  of  course.  The  point  was  decided  against  him  ; 
and,  upon  the  cause  coming  on  for  further  directions,  the 
exception  was  over-ruled,  and  a  specific  performance  de- 
creed, and  the  purchaser  was  to  be  paid  the  costs  up  to 
February  1820,  other  than  the  costs  of  his  insisting,  by 
his  answer,  on  the  illegality  or  abandonment  of  the  agree- 
ment, and  the  purchaser  was  to  pay  the  costs  of  the  sub- 
sequent proceedings  before  the  Master,  and  the  costs  of 
(*)the  case  to  the  Common  Pleas,  and  the  plaintiif  was 
to  pay  the  costs  of  the  hearing. 

In  the  case  of  Bruce  v.  Bainbridge(/),  where  the  bill 
was  filed  by  the  seller,  the  Master's  report  was  in  favor 
of  the  title,  a  case  was  sent  to  the  C.  P.,  and  the  certi- 
ficate was  against  the  title.  The  bill  was  dismissed  with 
costs,  from  the  date  of  the  Master's  report. 

But  if  a  good  title  is  not  shown  until  after  the  bill  is 
filed,  and  the  purchaser  take  no  step  inconsistent  with  the 
finding  of  the  Master,  the  seller  must  pay  the  costs  of  the 
whole  suit(m). 

If  a  seller,  upon  a  reference  to  the  Master,  establish  his 
title  upon  a  different  ground  from  what  appeared  in  the 
abstract,  the  purchaser  will  be  allowed  the  costs  of  the 
reference  and  the  applications  to  the  Court(w).  So, 
where  a  purchaser  might  in  the  first  instance  have  re- 
scinded the  contract,  but  binds  himself  by  long  acquies- 
cence, the  vendor  will  not  be  entitled  to  costs(o). 

(/)   Same  day,  MS. 

(m)   Annesley  v.  Muggeridge,  V.  C.  12  Mar.  1825,  MS. ;  and  Os- 
baldeston  v.  Askew,  V.  C.  11  Mar.  1829,  MS. 
(»)  Fielder  v.  Higginson,  3  Ves.  &  Bea.  142. 
(o)  Dickenson  v.  Heron,  sup.  vol.  2.  p.  6. 
(*28) 


OF  COSTS. 


Lord  Thurlow  has  said,  that  if  a  purchaser  will  not  wait 
until  the  title  is  cleared,  but  will  take  possession,  and  put 
the  vendor  to  all  the  inconvenience  of  the  discussion, 
when  he  is  out  of  possession,  and  the  other  has  got  it, 
that  weighs  much  as  to  costs(/>).  But  the  circumstance 
of  taking  possession  is  not  important,  where,  by  the  terms 
of  the  contract,  the  title  is  to  be  made  good  at  a  subse- 
quent period,  much  less  is  it  material  where  the  purchaser 
is  induced  to  take  possession  at  the  instance  of  the  vendor 
himself(9). 

(*)It  is,  however,  to  be  repeated,  that  every  case  must 
stand  on  its  own  grounds,  although,  from  these  few  in- 
stances, some  notion  may  perhaps  be  formed  of  what  the 
Court  is  likely  to  do  in  other  cases.  To  multiply  the 
instances  in  which  costs  in  equity  have  been  given  or  re- 
fused would  be  as  useless  as  it  would  be  tedious. 

{p)   11  Ves.  jun.  464.     See  Calcraft  v.  Roebuck,  1  Ves.  jun.  222. 
(f/)    11  Ves.  jun.  464.      Vide  snjy.  \o].  1.  p.  10. 


vol..   H.  6  (*29) 


[  34  j 


nCHAPTER  XI. 

OF  THE  OBLIGATION   OF  A  PURCHASER  TO  SEE  TO  THE 
APPLICATION  OF  THE  PURCHASE  MONEY. 


Where  a  trust  is  raised  hy  deed  or  will  for  sale  of  an 
estate,  a  clause,  that  tiie  receipts  of  the  trustees  shall  be 
sufficient  discharges  for  the  purchase-money,  is  mostly 
inserted,  and  rarely  ought  to  be  omitted  ;  because,  not- 
withstanding that  a  purchaser  would,  at  law,  be  safe  in 
paying  the  money  to  the  vendors,  although  they  were 
trustees,  yet  equity  will,  in  some  cases,  bind  purchasers 
to  see  the  money  applied  according  to  the  trust,  if  they 
be  not  expressly  relieved  from  that  obligation  by  the 
author  of  the  trust ;  and  where  the  purchaser  is  bound 
to  see  to  the  application  of  the  money,  great  inconve- 
nience frequently  ensues,  and,  in  some  instances,  it  would 
be  difficult  to  compel  the  purchaser  to  complete  the  con- 
tract. 

The  rules  on  this  subject, — principally  with  a  view  to 
testamentary  dispositions, — may  be  considered  under  two 
heads  :  First,  with  respect  to  real  estate.  Secondly,  with 
respect  to  leaseholds,  or  chattels  real.  For  the  rules  ap- 
plicable to  the  different  species  of  estates  are,  as  regards 
testamentary  gifts,  dissimilar ;  owing  to  the  much  greater 
power  which  a  testator  has  over  his  real,  than  over  his 
personal  estate. 

Previously  to  the  statute  of  fraudulent  devises(«),  free- 
hold lands  were  not  bound  by  even  specialty  debts  in  the 
hands  of  an  hcsres  factum  ;  although  an  hceres  natus  was 

(a)  3  W.  &  M.  c.  14. 

(*30) 


APPLICATION  OF  PURCHASE  MONEY. 


35 


(*)liable  to  specialty  debts  in  respect  of  land  descended(I)  ; 
but  personal  property,  which  was  formerly  of  very  trifling 
value,  was  always  holden  to  be  subject  to  the  payment  of 
debts  generally,  however  the  same  might  be  bequeathed. 
And  by  the  statute  of  Westminster  2,(6),  it  was  enacted, 
that  even  the  ordinary  should  be  bound  to  pay  the  debts 
of  the  intestate,  so  far  as  his  goods  would  extend,  in  the 
same  manner  as  executors  were  bound  in  case  the  deceased 
had  left  a  will.  In  fact,  no  man  can  exempt  his  personalty 
from  the  payment  of  his  debts;  but  it  must  go  to  his 
executors  as  assets  for  his  creditors,  and  be  applied  in 
a  due  course  of  administration  ;  that  is,  however  it  may 
be  bequeathed^  it  must  go  to  the  executors,  upon  trust,  in 
the  first  place,  for  payment  of  debts  generally.  Now, 
although  the  author  of  the  trust  may  have  neglected  to 
free  the  purchasers  of  his  property  from  the  obligation  of 
seeing  that  the  money  is  duly  applied,  yet  equity  hath 
thought  it  reasonable  that  a  purchaser  should  see  to  the 
application  of  the  purchase-money  where  the  trust  is  of  a 
defined  and  limited  nature  only ;  and  not  where  the 
trust  is  general  and  unlimited,  as  a  trust  for  payment  of 
debts  generally. 

(6)  13  Ed.  I.  c.  19. 

(I)  Although  an  heh-  at  law  is  bound  by  specialty  debts  in  respect  of 
lands  descended,  yet  a  purchaser  of  those  lands,  without  notice  of  any 
debts,  was  never  holden  to  be  subject  to  them.  The  statute  of  fraudu- 
lent devises  was  always  considered  as  placing  a  devisee  on  exactly  the 
same  footing  as  an  heir  at  law  ;  but  it  was  lately  contended  (see  Mat- 
thews V.  Jones,  2  Anst.  606,)  that  the  debts  of  the  testator  would  bind 
a  purchaser  from  the  devisee,  although  he  bought  bond  fide  and  without 
notice.  But  this  was  over-ruled.  Equity  will,  however,  in  behalf  of 
creditors,  grant  an  injunction  against  a  purchaser  to  restrahi  payment  to 
the  heir.  Green  v.  Lowes,  3  Bro.  C.  C.  217.  In  Woodgate  v.  Wood- 
gate,  MS.  Lord  Eldon  was  of  opinion,  that  simple  contract  creditors, 
under  47  Geo.  IlL  stand  in  the  above  respect  in  the  same  situation  as 
specialty  creditors  under  the  statute  of  fraudulent  devises. 

(*31) 


36  OF  SEEING  TO  THE  APPLICATION 

(*)From  these  rules  it  necessarily  follows,  that  a  bo7ia 
jide  purchaser  of  a  leasehold  estate  from  an  executor 
ought  not  to  be  bound  to  see  to  the  application  of  the  pur- 
chase-money, although  defined  and  limited  trusts  be  de- 
clared of  the  purchase-money.  But,  as  a  testator  can  de- 
clare an  original  limited  trust  of  his  real  estate,  wherever 
such  a  trust  is  created,  the  purchaser  is  bound  to  see  the 
money  duly  applied. 


SECTIOiN  I. 
Of  this  Liability,  with  reference  to  Real  Estate. 


And  first,  with  respect  to  real  estate. 

1.  If  the  trust  be  of  such  a  nature,  that  the  purchaser 
may  reasonably  be  expected  to  see  to  the  application  of 
the  purchase-money,  as  if  it  be  for  the  payment  of  lega- 
cies, or  of  debts  u  hich  are  scheduled  or  specified,  he  is 
bound  to  see  that  the  money  is  applied  accordingly(c)(279), 
and  that  although  the  estate  be  sold  under  a  decree  of 

(c)  Culpepper  ».  Aston,  2  Cha.  Ca.  221.  See  Show.  313;  Spalding 
V.  Shalmer,  1  Vern.  301  ;  Dunch  v.  Kent,  1  Vern.  260  ;  Anon.  Mose. 
96  ;  Abbot  v.  Gibbs,  1  Eq.  Ca.  xVbr.  358,  pi.  2  ;  Elliott  r.  Meiryman, 
Barnard.  Rep.  Cha.  81  ;  Smith  v.  Guyon,  1  Bro.  C.  C.  186,  and  the 
cases  cited  in  the  notei^I)  ;  and  see  1  Ves.  215. 

(I)  One  of  these  cases,  Langley  v.  Lord  Oxford,  is  in  Reg.  Lib.  B. 
1747,  fol.  300  ;  see  post,  S.  C.  Ambl.  17.  The  other  cases,  Tenant 
V.  Jackson,  and  Cotton  v.  Everall,  are  in  Reg.  Lib.  1773,  B.  fol.  120, 
481. 


(279)    See  JSlurray  v.   Ballon,  I   Johns.   Ch.   Rep.  666.   575.  Liii' 
ing  V.  Pfijfon,  2  Des.  375  :   and  note,  378. 
(*32) 


OF  PURCHASE  MONEY. 


37 


a  court  of  equity(f/),   or  by  virtue  of  an  act  of  parlia- 
ment(e)(280). 

And  the  47  Geo.  3,  c.  74(/),  which  makes  the  real 
(*)estates  of  traders  liable  to  simple-contract  debts,  does 
not  alter  the  rule  ;  and  therefore  a  purchaser  from  a  de- 
visee of  a  trader  is  liable  to  the  application  of  the  pur- 
chase-money where  legacies  only  are  charged  on  the  estate 
by  the  will(^) ;  and  the  same  principle  will  therefore  ap- 
ply to  the 3  &  4  Will.  4,  c.  104,  which  makes  all  real  estates 
of  persons  who  die  after  the  29th  of  August  1833,  liable 
to  all  simple-contract  debts. 

2.  If  more  of  an  estate  be  sold  than  is  sufficient  for 
the  purposes  of  the  trust,  that  will  not  turn  to  the  preju- 
dice of  the  purchaser;  for  the  trustees  cannot  sell  just 
sufficient  to  pay  the  debts,  fee.  Besides,  in  most  cases, 
money  is  to  be  raised  to  pay  the  trustees'  expenses(A). 

3.  Where  the  trust  is  for  payment  of  debts  generally, 
a  purchaser  is  not  bound  to  see  to  the  application  of  the 
purchase-money,  although  he  has  notice  of  the  debts ; 
for  a  purchaser  cannot  be  expected  to  see  to  the  due 
observance  of  a  trust  so  unlimited  and-undeiined(z)(281). 

4.  Nor  is  a  purchaser  bound  to  see  the  money  applied, 
where    the  trust  is  for  payment  of  debts  generally,  and 

(d)  Lloyd  V.  Baldwin,  1  Ves.  173.  See  Binks  v.  Lord  Rokeby,  2 
Madd.  227. 

(e)  Cotterell  v.  Hampson,  2  Vern.  5. 

(/)   Repealed  and  re-enacted  by  the  1  W.  4,  c.  47. 

(g)  Horn  V.  Horn,  2  Sim.  &  Stu.  448. 

{h)  Spalding  v,  Shalmer,  1  Vern.  SOL 

(i)  See  the  cases  cited  above,  and  Humble  v.  Bill,  1  Eq.  Ca.  Abr. 
358,  pi.  4  ;  Ex  parte  Turner,  9  Mod.  418  ;  Hardwicke  v.  Mynd,  1 
Anstr.  109  ;  and  "VVilliamson  v.  Curtis,  3  Bro.  C.  C.  96  ;  Barker  v. 
Duke  of  Devon,  3  Mer.  310.. 


(280)  See  Falliaferro  v.  Minor,  1  Gall,  524. 

(281)  See  Lining  v.  Peyton,  2  Des.  378;  in  note. 

(*33; 


38 


OF  SEEING  TO  THE  APPLICATION 


also  for  payment  of  legacies(i)  ;  because,  to  hold  that  he 
is  liable  to  see  the  legacies  paid,  would  in  fact  involve 
(*)him  in  the  account  of  the  debts,  which  must  be  first 

paidOX")- 

5.  And  for  the  same  reason  the  purchaser  is,  of  course, 

not  bound  to  see  that  only  so  much  of  the  estate  is  sold 
as  is  necessary  for  the  purposes  of  the  trust. 

6.  But  although  there  be  no  specification  of  the  debts, 
yet  a  purchaser,  it  is  said,  must  see  to  the  application  of 
the  money  where  there  has  been  a  decree ;  as  that  re- 
duces it  to  as  much  certainty  as  a  schedule  of  the  debts. 
In  such  cases,  therefore,  the  purchaser  should  not  pay  to 
the  trustees,  but  must  see  to  the  application,  and  take 
assignments  from  the  creditors :  otherwise  he  should 
apply  to  the  Court,  that  the  money  may  be  placed  in  the 
Bank,  and  not  taken  out  without  notice  to  him ;  the 
reason  of  which  is,  that  it  is  at  his  peril(A:).  It  is  now, 
however,  the  prevailing  opinion  that  the  purchaser  is  not, 
in  such  a  case,  bound  to  see  to  the  application  of  the 
money.  The  Court  takes  upon  itself  the  application  of 
the  money. 

7.  It  is  the  general   opinion  of   the  Profession,  that 

{j)  Jebb  V.  Abbot,  and  Benyou  v.  Collins,  Butler's  n.    (1)  to  Co. 
Litt.  290  b,  s.  12  ;  and  Rogers  v.  Skillicorne,  Ambl.  188. 
{k)  Lloyd  V.  Baldwin,  1  Yes.  173. 

(I)  The  above  rule,  although  so  long  and  clearly  settled,  appears  to 
have  been  entirely  overlooked  in  the  case  of  Omerod  v.  Hardman,  be- 
fore the  Duchy  Court,  reported  in  5  Yes.  jun.  722  ;  but  this  case  can 
by  no  means  be  considered  as  an  authority,  and  has  been  expressly  de- 
nied by  Lord  Eldon  See  6  Yes.  jun.  654,  n.  Qu.  however,  whether 
the  case  of  Omerod  v.  Hardman  was  not  thought  to  be  within  the 
principle  stated  in  pi.  13,  post. 

(II)  And  where  the  whole  money  has  been  raised,  the  heir  or  devisee 
will  be  entitled  to  the  estates  unsold,  and  the  creditors  or  legatees  will 
have  no  remedy  against  the  same  ;  because  the  estate  is  debtor  tor  the 
debts  and  legacies,  but  not  for  the  faults  of  the  trustees.  Anon,  in 
Dom.  Proc.  1  Salk.  153. 

(*34) 


OF  PURCHASE  MONEY. 


39 


where  the  time  of  sale  is  arrived,  and  the  persons  entitled 
to  the  money  are  infants  or  unborn,  the  purchaser  is  not 
bound  to  see  to  the  application  of  the  money  ;  because  he 
would  otherwise  be  implicated  in  a  trust,  which  in  some 
cases  might  be  of  long  duration.  This  point  has  lately 
been  so  decided(/). 

(*)8.  But  if  an  estate  is  charged  with  a  sum  of  money 
for  an  infant,  payable  at  his  majority,  and  there  is  no  di- 
rection to  appropriate  the  money,  a  purchaser  cannot  safe- 
ly complete  his  purchase,  although  the  money  be  invested 
in  the  funds  as  a  security  for  the  payment  of  the  legacy 
to  the  infant,  when  he  shall  become  entitled  ;  for  if,  in 
the  event,  the  fund  should  turn  out  deficient  for  payment 
of  the  infant's  legacy,  he  may  still  have  recourse  to  the 
estate  for  the  deficiency.  And  it  should  seem,  that  even 
a  court  of  equity  cannot,  in  a  case  of  this  nature,  bind  the 
right  of  an  infant(m). 

9.  It  appears  to  be  thought  by  the  Profession,  that 
although  the  trusts  are  defined,  yet  that  payment  to  the 
trustees  is  sufficient,  wherever  the  money  is  not  merely 
to  be  paid  over  to  third  persons,  but  is  to  be  applied 
upon  trusts  which  require  time  and  discretion,  as  where 
the  trust  is  to  lay  out  the  money  in  the  purchase  of 
estates(282). 

And  it  now  appears  that  this  point  was  decided  as  far 
back  as  in  1792(/i),  where  in  a  settlement  of  real  estates 
with  a  power  of  sale,  the  trustees  were  to  receive  the 
purchase-money,  and  to  lay  it  out  again  in  lands  to  the 
uses  of  the  settlement,  and  till  that  was  done  to  invest  it 
in  government  funds,  &c.     It  was  objected   that  a  good 

(/)  Sowarsby  v.  Lacy,  4  Madd.  142  ;  Lavender  v.  Stanton,  6  Madd. 
46  ;  Breedon  v.  Breedon,  1  Russ.  &  Myl.  413. 
(w)  Dickenson  v.  Dickenson,  3  Bro.  C.  C.  19. 
(n)  Doran  v.  Wiltshire,  3  Swanst.  699. 

^282)  See  Lining  v.  Peyton,  2  Des.  375. 

C*35) 


40  C)F  SEEING  TO  THE  APPLICATION 

title  could  not  be  made,  as  there  was  no  clause  that  the 
trustees'  receipts  should  be  good  discharges.  The  Lord 
Chancellor  said  :  As  to  the  power  which  the  trustees 
have  of  giving  a  discharge,  it  is  true,  that  when  land  is 
to  be  sold,  and  a  particular  debt  is  to  be  paid  with  it,  the 
purchaser  is  bound  to  see  to  the  application  of  the  pur- 
chase-money. But  in  cases  where  the  application  is  to  a 
payment  of  debts  generally,  or  to  a  general  laying  out  of 
the  money,  he  knew  of  no  case  which  lays  down,  or 
(*)any  reasoning  in  any  case  which  goes  the  length  of  say- 
ing that  a  purchaser  is  so  bound;  and  therefore  he  con- 
ceived that  the  receipt  of  the  trustees  would  be  a  good 
discharge  in  this  case. 

In  a  recent  case,  where  the  trust  was  to  pay  the  money 
amongst  creditors,  wlio  should  come  in  within  eighteen 
months,  the  estate  was  sold  after  that  time  had  elapsed, 
and  Sir  William  Grant,  Master  of  the  Rolls,  held,  that  the 
receipt  of  the  trustees  was  a  good  discharge(o).  The  deed, 
he  observed,  very  clearly  conferred  an  immediate  power  of 
sale,  for  a  purpose  that  could  not  be  immediately  defined, 
viz.  to  pay  debts  which  could  not  be  ascertained  until 
a  future  and  distant  period.  It  was  impossible  to  contend 
that  the  trustees  might  not  have  sold  the  whole  property 
at  any  time  they  thought  fit,  after  the  execution  of  the 
deed  ;  and  yet  it  could  not  be  ascertained,  until  the  end 
of  eighteen  months,  who  were  the  persons  among  whom 
the  produce  of  the  sale  was  to  be  distributed.  If  the  sale 
might  take  place  at  a  time  when  the  distribution  could 
not  possibly  be  made,  it  must  have  been  intended  that 
the  trustees  should,  of  themselves,  be  able  to  give  a  dis- 
charge for  the  produce  ;  for  the  money  could  not  be  paid 
to  any  other  person  than  the  trustees.  It  is  not  material 
that  the  objects  of  the  trust  might  have  been  actually 

(o)  Balfour  v.  Welland,  16  Ves.  jun.  151. 

(*36) 


OF  PURCHASE  MONEY.  4J 

ascertained  before  the  sale.  The  deed  must  receive  its 
construction  as  from  the  moment  of  its  execution.  Ac- 
cording to  the  frame  of  the  deed,  the  purchasers'were  or 
were  not  liable  to  see  to  the  application  of  the  money ; 
and  their  liability  could  not  depend  upon  any  subsequent 
event.  Another  ground  relied  upon  in  this  case,  was,  that 
the  creditors  were  parties  to  the  deed,  and  it  was  clearly 
intended  that  the  trustees  should  receive  and  apply  the 
money. 

(*)10.  So  where  the  trust  is  to  lay  out  the  money  in  the 
funds,  &c.  upon  trusts,  if  the  purchaser  see  it  invested 
according  to  the  trust,  and  procure  the  trustees  to  execute 
a  declaration  of  trust,  he  is  in  practice  considered  as  dis- 
charged from  the  obligation  of  seeing  to  the  further  appli- 
cation of  the  money. 

This  appears  to  have  been  the  settled  practice  in  Mr. 
Booth's  time  ;  for  in  answer  to  a  question  how  far  a  pur- 
chaser was,  in  a  case  of  this  nature,  bound  to  see  to  the 
application  of  the  purchase-money,  he  said  he  was  of 
opinion,  that  all  that  would  be  incumbent  on  the  pur- 
chaser to  see  done  in  the  case,  would  be  to  see  that  the 
trustees  did  invest  the  purchase-money  in  their  own 
names,  in  some  of  the  public  stocks  or  funds,  or  on 
government  securities  ;  and  in  such  case  the  purchaser 
would  not  be  answerable  for  any  non-application  (after 
such  investment  of  the  money)  of  any  monies  which 
might  arise  by  the  dividends  or  interest,  or  by  any  dis- 
position of  such  funds,  stocks  or  securities,  it  not  being 
possible  that  the  testator  should  expect  from  any  pur- 
chaser any  further  degree  of  care  or  circumspection  than 
during  the  time  that  the  transaction  for  the  purchase- 
money  was  carrying  on ;  and  therefore  the  testator  must 
be  supposed  to  place  his  sole  confidence  in  the  trustees  ; 
and  this,  he  added,  was  the  settled  practice  in  such  cases, 
and   he  had  often  advised  so  much  and   no  more  to  be 

VOL.  II.  6  (*37) 

V 


A2  OF  SEEING  TO  THE  APPLICATION  . 

(lone ;  and  particularly  in  the  case  «f  tlie  trustees  under 
the  Duchess  of  Marlborough's  will.  And  in  this  opinion 
Mr.  Wilbraham  concurred^?). 

1 1 .  The  same  rules  respecting  the  liability  of  a  pur- 
chaser to  see  to  the  application  of  the  purchase-money 
appear  to  apply,  whether  the  estate  be  devised  or  con- 
veyed to  trustees  to  sell  for  payment  of  debts,  &-c.  or 
(*)whether  it  be  only  charged  with  the  debts  ;  although 
a  difference  of  opinion  has  prevailed  in  the  Profession  on 
this  point. 

In  a  case  in  Mosely(r^)  it  was  laid  down,  that  a  pur- 
chaser should  be  bound  to  see  to  the  application  of  the 
purchase-money  where  the  debts  were  only  charged  on 
the  estate. 

But  in  Elliot  v.  Merryman(?),  the  Master  of  the  Rolls 
decreed  otherwise ;  because,  if  the  contrary  rule  were 
holden,  no  estate  could  in  such  cases  be  sold,  except 
through  the  medium  of  the  Court  of  Chancery?  which 
would  be  productive  of  the  greatest  inconvenience. 

Lord  Camden(5)  appears  to  have  been  of  the  same 
opinion ;  and  in  a  late  case(i)  Lord  Eldon  said,  that 
where  a  man,  by  a  deed  or  will,  charges  or  orders  an 
estate  to  be  sold  for  payment  of  debts  generally,  and  then 
makes  specific  dispositions,  the  purchaser  is  not  bound 
to  see  to  the  application  of  the  purchase-money. 

This  point  may  be  considered  as  settled  upon  principle, 
as  well  as  authority.  For  although  a  mere  charge  is  no 
legal  estate,  but  only  that  declaration  of  intention  upon 
which  a  court  of  equity  will  fasten,  and  by  virtue  of 
which  they  will  draw  out  of  the  mass  going  to  the  heir, 

{p)   See  2  vol.  Cas.  &  Opin.  114. 

(qr)  Anon.  Mose.  96  ;  and  see  Newoll  r.  Ward,  Neln.  C'ha.  Rep. 
38. 

(r)  Barnard.  Rep.  Cha.  78  ;  2  Atk.  41  ;  Ambl.  189,  marg. 
(s)  See  Walker  v.  Smalwood,  Ambl.  676. 
(/)   See  6  Ves.  jun.  654,  n. 


OF  PURCHASE  MONEY.  43 

or  to  Others,  that  quantum  of  interest  that  will  be  sufficient 
for  the  debts(2f)  ;  yet  it  is  as  much  a  trust,  as  a  direct 
conveyance  or  devise  to  trustees  for  the  same  purpose  : 
the  only  difference  is,  that  in  the  case  of  a  charge,  the 
trust  arises  by  the  construction  of  equity  ;  whereas  in 
the  case  of  a  conveyance  or  devise,  it  is  produced  by  the 
express  declaration  of  the  party  ;  and  when  the  trust  is 
(*)m  esse,  it  seems  wholly  immaterial  by  what  means  it 
has  arisen. 

And  where  an  estate  is  given  to  a  devisee,  he  paying 
the  debts,  so  that  the  words  are  sufficient  to  pass  the  fee, 
a  purchaser  from  the  devisee  cannot  be  affected  by  any 
gift  over  of  the  estate,  for  the  devisee  has  a  right  to  sell 
to  pay  the  debts,  and  if  the  price  of  the  estate  is  more 
than  will  satisfy  the  debts,  the  remedy  of  the  devisees 
over  is  against  the  first  devisee,  and  not  against  the  pur- 
chase r(a'). 

It  seems  hardly  necessary  to  remark,  that  where  lands 
are  charged  with  the  payment  of  annuities,  those  lands 
will  be  liable  in  the  hands  of  a  purchaser,  because  it 
was  the  very  purpose  of  making  the  lands  a  fund  for 
that  payment,  that  it  should  be  a  constant  and  subsisting 
fund(i/). 

So  where  an  estate  is  devised,  subject  to  existing 
charges,  the  purchaser  must  of  course  see  the  charges 
duly  paid. 

12.  But  if  the  sale  or  mortgage,  from  the  circumstances 
of  the  transaction,  afford  evidence  that  the  money  was 
not  to  be  applied  for  the  debts  or  legacies,  the  purchaser 
or  mortgagee  will  hold  liable  to  the  charge(2;). 

(m)  See  Bailey  v.  Ekins,  7  Ves.  jun.  323, 
(x)   Dolton  i\  Hewen,  6  Madd.  9. 

{y)  Elliot  V.  Merrymaii,  Barnard.  Rep.  Cha.  82.  See  Wyuu  v. 
Williams,  5  Ves.  jun.  130. 

(2)   Watkins  v.  Cheek,  2  Sun.  &  Slu.  199. 

'*39) 


44 


OF  SEEING  TO  THE  APPLICATION 


13.  In  Johnson  i\  Kennett(a),  the  estate  was  devised 
to  the  son  in  fee,  subject  to  the  debts,  an  annuity  to  the 
widow  and  legacies  to  the  daughters.  The  son  also  was 
entitled  to  the  personal  estate.  Two  or  three  years  after 
the  testator's  death,  the  son  and  his  wife  levied  a  fine 
and  conveyed  the  estate  without  reference  to  the  debts 
and  legacies  to  uses  to  bar  dower.  The  son  then  sold 
the  estate  in  lots  to  several  purchasers.  The  convey- 
ances (*)recited  the  will,  the  conveyance  and  fine,  the 
contract  to  sell,  and  an  agreement  to  give  to  the  pur- 
chasers a  bond  of  indemnity  against  the  legacies.  The 
deeds  did  not  recite  that  the  debts  were  paid.  In  some 
of  the  deeds  the  widow  joined  and  released  her  annuity 
pro  tanto.  Each  purchaser  had  a  bond  of  indemnity 
against  the  legacies,  in  which  no  notice  was  taken  of  the 
debts.  The  daughters  filed  a  bill  against  the  purchasers 
and  the  assignee  of  the  son.  The  bill  stated  that  the 
son  had  paid  the  debts,  and  that  the  legacies  were 
unpaid.  The  answers  did  not  deny  that  the  debts 
had  been  paid,  and  stated  the  belief  of  the  purchasers 
that  the  legacies  were  unpaid.  It  was  held  that  the 
estates  were  still  charged  with  the  legacies  in  the  hands 
of  the  purchasers,  for  they  dealt  with  the  son,  not  as 
a  trustee  for  the  widow  and  daughters  but  as  the  owner 
of  the  estate,  and  they  were  aware  that  the  legacies  were 
unpaid,  and  did  not  represent  that  they  were  told  or 
supposed  that  the  debts  were  unpaid. 

14.  These  are  the  distinctions  which,  according  to  the 
books,  appear  to  exist  in  regard  to  the  liability  of  a  pur- 
chaser to  see  to  the  application  of  money  arising  by  sale 
of  estates  conveyed  or  devised  to  trustees  upon  trust  to 
sell ;  but  the  reader  must  be  apprised,  that  some  gentle- 
men are  of  opinion,  that  a  purchaser  is  in  no  case  bound 
to  see  to  the  application  of  purchase-money,  lohere  there 

(a)  V.  C.  10  Dec.  1833,  MS. 
(*40) 


OF  PURCHASE  MONEY. 


45 


is  a  hand  appointed  to  receive  the  money.  And  it  appears 
that  Lord  Kenyon,  when  Master  of  the  Rolls,  inclined 
strongly  to  the  opinion,  although  he  made  no  decision, 
that  trustees  having  the  power  to  sell,  they  must  have 
the  power  incident  to  the  character,  viz.  the  power  to 
give  a  discharge(6). 

And  Sir  William  Grant  observed,  that  he  thought  the 
(*)doctrine  upon  this  point  had  been  carried  farther  than 
any  sound  equitable  principle  would  warrant.  Where,  he 
added,  the  act  is  a  breach  of  duty  in  the  trustee,  it  is  very 
fit  that  those  who  deal  with  him  should  be  affected  by  an 
act  tending  to  defeat  the  trust  of  which  they  have  notice  ; 
but  where  the  sale  is  made  by  the  trustee  in  performance 
of  his  duty,  it  seems  extraordinary  that  he  should  not  be 
able  to  do  what  one  should  think  incidental  to  the  right 
exercise  of  his  power,  that  is,  to  give  a  valid  discharge 
for  the  purchase-money.  But  it  was  not  necessary  to 
determine  that  in  the  case  before  His  Honor(c). 

Of  those  who  hold  that  a  purchaser  is  only  liable  to 
see  to  the  application  of  the  money  where  there  is  not 
a  hand  appointed  to  receive  the  money,  and  the  trusts  of 
the  money  are  defined,  Mr.  Powell  is  the  only  one  whose 
reasons  are  before  the  Profession (c^).  The  whole  of 
Mr.  Powell's  argument(I)  appears  to  have  been  suggested 
to  him,  and  indeed  depends  on  the  case  of  Cuthbert  v. 
Baker.  For  throughout  the  many  cases  which  have  been 
referred  to  in  this  chapter,  the  decisions  have  invariably 
been  pronounced  on  the  distinction  between  a  limited 
and  a  general  trust ;  and  in  no  case  has  the  appointment 
of  a  hand  to  receive  the  money  been  considered  as  affect- 

(6)  See  4  Ves.jun.  99. 

(c)  See  16  Ves.  jun.  156. 

(d)  See  1  Mortg.  312-330,  4th  edition. 

(I)  See  the  3d  edition  of  Powell  on  Mortgages,  where  the  point  is 
not  noticed. 

(*41) 


46 


OF  SEEING  TO  THE  APPLICATION 


ing  the  question,  any  further  than  that  it  at  one  time 
seems  to  have  been  thought,  that  in  every  case  of  a  mere 
charge,  the  purchaser  was  bound  to  see  to  the  application 
of  the  money.  That  this  was  always  deemed  the  true 
distinction,  is  evinced  by  manuscript  and  printed  opinions 
to  that  effect,  of  all  the  most  leading  characters  in  the 
Profession  of  the  last  and  present  century.  So  Lord 
(*)Eldon,  in  condemning  the  doctrine  advanced  in  Omer- 
od  V.  Hardman(e),  did  not  say  it  was  wrong  because  there 
was  a  hand  appointed  to  receive  the  money  (which  was 
the  fact),  but  because  the  first  trust  was  for  payment  of 
debts  generally. 

Mr.  Powell,  however,  was  not  singular  in  his  construc- 
tion of  the  decree  in  the  case  of  Cuthbert  v.  Baker.  It  is 
well  known  by  the  Profession,  that  Lord  Redesdale,  who 
was  counsel  for  Baker,  the  purchaser,  considered  the 
decision  in  the  same  light. 

The  case  is  thus  stated  by  Mr.  Powell : — A.  made  his 
Wi\\(f),  and  thereby  directed  that  all  his  personal  estate 
(except  as  therein  excepted)  should  be  applied,  as  far  as 
the  same  would  extend,  in  payment  of  debts,  legacies, 
and  funeral  expenses,  and  of  all  annuities  by  him  granted  ; 
and  if  such  personal  estate  should  not  be  sufficient  for 
those  purposes,  then  it  was  his  further  will  and  desire, 
and  he  did  direct,  that  the  deficiency,  whatever  it  might 
be,  should  be  paid  and  made  good  out  of  his  real  estate 
(except  a  part  therein  mentioned,  which  he  did  not  intend 
to  make  subject  thereto),  and  which  real  estates  he  charged 
with  the  payment  of  such  deficiency,  to  whose  hands  so- 
ever the  same  came.  And  so  subject  and  exempt,  he 
gave,  devised,  &c.  all  his  real  and  personal  estate  in  the 
following  manner :  certain  parts  of  his  estate  to  his  wife 

(e)  See  6  Ves.  jun.  654,  n.  et  supra,  n.  (1)  to  s.  4. 
(/)  Mr.  P.   refers  to  4th  July  1790,  Reg.   Lib.  4,  441  ;  the  correct 
reference  is  Lib.  Beg.  A.  1790,  fo.  442. 

(*42) 


OF  PURCHASE  MONEY. 


47 


in  fee  ;  and  as  to  the  manors,  messuages,  &c.  not  given 
to  his  wife  in  fee,  he  devised  them  to  his  wife  for  life  ; 
and,  after  her  decease,  he  gave  the  same  to  trustees,  in 
trust  to  sell  and  to  divide  and  to  distribute  the  money 
which  should  arise  by  such  sale  between  and  amongst 
such  child  or  children  of  A.  B.,  on  the  body  of  his  then 
(*)wife  begotten  ;  and  such  children  of  C.  Z).(I)as  should 
be  living  when  the  devise  to  the  trustees  should  take 
effect,  equally  share  and  share  alike,  to  take  per  capita, 
and  not  per  stirpes :  if  but  one  such  child,  the  estate  to 
be  transferred  to  him,  and  not  to  be  sold.  The  wife  died. 
One  trustee  died  in  her  life-time.  The  surviving  trustee 
sold  the  estate  by  auction.  The  personal  estate  was  suf- 
ficient to  discharge  the  debts :  the  claimants  under  the 
devise  to  children  were  seven  children  of  A.  B.,  and  six 
children  of  C.  D. (II),  who  were  entitled  to  the  purchase- 
money  in  equal  shares.  One  of  the  children  of  C.  D.  was 
in  the  East  Indies,  and  two  were  infants.  The  purchaser 
refused  to  complete  his  purchase,  objecting  thereto  on 
the  ground,  that  there  being  no  proviso  in  the  will  to  ex- 
onerate the  purchaser  from  seeing  to  the  application  of 
the  money,  the  purchaser  was  bound  to  know  or  find  out 
what  children  of  the  persons  in  that  behalf  named  were 
living  at  the  testator's  wife's  death  ;  for  that  such  chil- 
dren ought  individually  to  execute  the  conveyance,  and 
give  releases  for  their  respective  claims ;  and  that  one 
being  in  the  East  Indies,  and  two  being  infants,  could 
not  join  in  such  conveyance.  But  the  decree  was,  that 
the  contract  should  be  carried  into  execution,  that  the 
infimts'  shares  of  the  purchase-money  should  be  paid  to 
the  Accountant-general,  and  that  the  remainder  of  the 
})urchase-money  should  be  paid  to  the  trustee.     The  de- 

(I)  This  is  mis-stated,  for  the  money  was  given  to  such  of  the  children 
of  three  persons  as  sliould  be  living  at  (he  time  when  the  devise  to  the 
trustees  should  take  eflect. 

(II)  This  is  inaccurate.     There  were  seventeen  children  in  all. 

(*43) 


48 


OF  SEEING  TO  THE  APPLICATION 


1 


cree  proceeded  to  direct  that  all  proper  parties  should 
join  in  the  proper  conveyances. 

Mr.  Powell  observes,  that  this  decision,  though  not 
final,  as  it  still  left  room  for  an  application  to  the  Court 
to  determine  who  might  be  proper  parties  to  the  con- 
vejance(*)  appeared  to  him  to  be  conclusive  on  the  ques- 
tion, whether  the  persons  beneficially  entitled  are  neces- 
sary parties  ;  because  there  could  be  no  ground  to  consider 
those  persons  as  necessary  parties,  unless  it  were  to 
discharge  the  purchaser  :  but  there  seemed  to  him  to  be 
no  power  in  the  Court  to  compel  a  person  beneficially 
interested  in  money  to  arise  by  sale  of  land,  to  discharge 
that  land,  unless  it  were  upon  paying  or  securing  the 
money  to  him.  But  the  Court,  by  directing  the  payment 
to  the  trustee,  had  none  that  which  rendered  a  direction 
to  pay  to   the  cestui  que  trust  impossible. 

It  will  be  seen  that  Mr.  Powell's  argument  is  entirely 
founded  on  the  order  to  pay  the  remainder  of  the  pur- 
chase-money to  the  trustee,  and  this  ground  wholly  fails 
him  ;  for  all  the  cestuis  que  trust  ivere  plaintiffs,  and  the 
prayer  of  the  bill  was,  that  the  infants^  shares  might  he 
invested,  and  that  the  remainder  of  the  purchase  money 
might  be  paid  to  the  trustee. 

It  is  not  noticed  in  the  foregoing  statement  of  the  case, 
that  no  costs  were  given  ;  but  the  fact  is,  that  the  pur- 
chaser was  refused  his  costs,  and  that  circumstance  may 
perhaps  induce  a  conclusion,  that  the  construction  put 
upon  the  case  by  Mr.  Powell  is  correct. 

But  it  is  conceived,  that  there  is  a  ground  upon  which 
the  decision  may  be  supported  without  impeaching  the 
settled  doctrine  on  this  subject.  The  trust  was  for  such 
of  the  children  of  three  persons  as  should  be  living  when 
the  estate  should  fall  into  possession,  and  it  was  strongly- 
insisted  by  the  bill,  and,  it  is  apprehended,  with  great 
reason,  that  the  cestuis  que  trust  were  in  regard  to  the 

(*44) 


OF  PURCFIASE  MONEY'. 


49 


purchaser  undefined ;  and  lie  was  not  bound  to  ascertain 
or  inquire  ho^v  many  there  were,  and  who  they  were. 
The  facts  of  the  case  were  sucH  as  to  tempt  a  Judge  to 
put  that  construction  on  the  trust ;  there  were  seventeen 
children,  two  of  whom  were  infants,  and  another  was  in 
(*)the  East  Indies.  It  should  seem,  therefore,  that  there 
is  a  solid  principle  to  which  Lord  Thurlow's  decision  can 
be  referred,  and,  consequently,  a  purchaser  can  scarcely 
be  advised  to  incur  the  risk  of  paying  money  to  a  trustee, 
on  the  authority  of  this  case,  in  opposition  to  the  former 
decisions.  Perhaps  another  ground  remains  upon  which 
the  decision  might  have  been  made.  All  the  cestuis  que 
trust  of  age,  and  in  the  kingdom,  offered,  previously  to 
the  commencement  of  the  suit,  to  give  receipts  for  their 
shares :  the  receipt  of  the  trustee  would  certainly  have 
been  a  sufficient  discharge  for  the  shares  of  the  infants, 
and  also,  as  it  is  conceived,  for  the  share  of  the  cestui  que 
trust,  who  was  abroad.  And  in  this  view  of  the  case  the 
purchaser  was  clearly  liable  to  the  costs.  It  were  difficult 
to  maintain,  that  the  absence  of  a  cestui  que  trust  in  a 
foreign  country  shall,  in  a  case  of  this  nature,  impede  the 
sale  of  the  estate.  Lord  Thurlow's  judgment  in  this  case 
would  be  a  very  desirable  present  to  the  Profession.  In 
a  case  which  came  before  the  same  Judge  a  few  years 
before  that  of  Cuthbert  v.  Baker,  and  -which  I  learn  from 
a  gentleman  who  has  seen  the  papers  relating  to  the  estate, 
is  correctly  reported,  the  estate  was  subjected  to  the  pay- 
ment of  debts  generally ;  and  his  Lordship  said,  that  the 
purchaser  was  a  mere  stranger,  and  was  not  bound  to 
look  to  the  application ;  ivhere  the  estate  is  to  be  sold,  and 
a  specific  sum,  as  51. ,  to  be  paid  to  A.,  the  purchaser  must 
see  to  the  application ;  but  where  it  is  to  be  sold  generally, 
he  is  not(g). 

In  the   case  of  Currer  t'.   Walkley,  reported    in  Mr. 

(g)  Smith  r.  Guyon,  1783,  1  Bro.  C.  C.  116. 

VOL.   J  I.  7  (*45) 


^Q  OF  SEEING  TO  THE  APPLICATION 

Dickens'  second  volunie(/t),  which  was  also  before  Lord 
Thurlow,  it  is  stated  that  the  testator  had  devised  estates, 
subject  to  particular  charges  :  he  afterwards  entered  into 
a  contract  for  sale  of  a  part  of  the  estate,  and  the  pur- 
chaser (*)paid  the  sum  of  600/.  as  a  deposit.  The  bill 
was  for  an  account  of  what  was  due  to  the  plaintiff  in  re- 
spect of  his  charge,  and  that  the  purchaser  might  pay  out 
of  the  remainder  of  his  purchase-money  what  remained 
due  to  the  plaintiff.  Lord  Thurlow  is  reported  to  have 
said,  that  if  an  estate  is  devised  to  trustees  to  sell,  and 
the  testator  afterwards  contracts  for  the  sale  of  the  estate, 
it  is  enough  for  the  purchaser  to  pay  the  purchase-money 
into  the  hands  of  the  trustees,  to  apply  it,  as  it  doth  not 
lie  with  him  to  see  it  applied ;  but  if  the  estate  be  devis- 
ed, subject  to  particular  charges,  it  is  incumbent  on  him 
to  see  it  applied  in  payment  of  those  particular  charges. 

This  case  seemed  to  apply  to  the  point  under  discus- 
sion ;  but  no  reliance  could  be  placed  upon  it,  as  it  was 
to  be  inferred  from  the  report,  that  Lord  Thurlow  held, 
that  a  devise  of  an  estate  was  not  revoked  in  equity  by 
a  subsequent  contract  for  sale  of  it — a  doctrine  which  it 
was  difficult  to  suppose  could  have  fallen  from  so  great  a 
Judge. 

The  case  is  stated  in  the  Registrar's  book(i),  by  the 
name  of  Comer  v.  Walkley,  and  Mr.  Dickens'  report  of 
it  is  a  complete  mis-statement.  The  estate  was  originally 
devised  to  trustees  upon  trust,  to  sell  and  pay  debts  gene- 
rally. The  estate  was  subject  to  an  annuity  at  the  death 
of  the  testator.  The  trustee  sold  a  part  of  the  estate  for 
720/.,  600/.  was  left  in  the  purchaser's  hand  as  an  in- 
demnity against  the  annuity.  The  purchaser  afterwards 
paid  250/.,  part  of  the  600/.,  to  the  trustee.  By  several 
conveyances,   &c.  the    estate    purchased    became    again 

(A)  2  Dick.  649. 

(i)    Reg.  Lib.  A.  1784,  fol.  625. 

(*46) 


OF  KTRCHASE  MONEY.  5| 

vested  in  trustees  upon  trust,  to  sell  for  payment  of  debts 
generally.  These  trustees  sold  the  estate  to  Charles 
Whittard,  who  objected  to  complete  the  contract  without 
the  concurrence  of  the  person  entitled  to  the  residue,  then 
(*)unpaid,  of  the  600/.  After  a  great  lapse  of  time  the 
person  entitled  to  the  residue  of  the  600/.  filed  a  bill 
against  Whittard  and  others  for  payment  of  it ;  and  Whit- 
tard filed  another  bill  for  a  specific  performance,  which 
was  accordingly  decreed ;  and  the  proper  accounts  were 
directed  to  be  taken  in  the  first  cause.  Whittard's  costs 
in  both  causes  were  allowed  to  him.  The  decision,  there- 
fore, appears  to  have  been,  that  the  600/.  was  a  lien  on 
the  land.  The  latter  part  of  Lord  Thurlow's  judgment, 
reported  by  Dickens,  clearly  referred  to  the  annuity, 
which  was  a  subsisting  charge  on  the  estate  at  the  testa- 
tor's death.  And  adverting  to  the  circumstances  of  the 
case,  the  first  part  of"  the  judgment  may,  perhaps,  be  read 
thus  :  If  an  estate  is  devised  to  trustees  to  sell,  and  the 
trustees  afterwards  contract  for  the  sale  of  the  estate,  it  is 
enough  for  he  purchaser  to  pay  the  purchase-money  into 
the  hands  of  the  trustees  to  apply  it,  as  it  doth  not  lie 
with  him  to  see  it  applied.  Now  this,  as  corrected,  seems 
in  favor  of  the  opinion,  that  where  a  hand  is  appointed 
to  receive  the  money,  a  purcjiaser  is  not  bound  to  see 
to  the  application  of  the  purchase-money ;  but  it  should 
not  be  forgotten,  that  this  observation  was  made  in  a  case 
where  the  trust  was  for  payment  of  debts  generally. 

15.  Where  the  trust  is  to  raise  so  much  money  as  the 
personal  estate  shall  prove  deficient  in  paying  the  debts, 
or  debts  and  legacies,  it  seems  formerly  to  have  been 
doubted  whether  the  purchaser  was  not  bound  to  ascer- 
tain the  deficiency.  Mr.  Fearne  thought  a  purchaser  was 
bound  to  do  so(A;).     But  the  opinion  of  the  Profession  is 

{k)  Fearne's  Poslhuina,  p.  121. 


52 


OF  SEEING  TO  THE  APPLICATION 


certainly  otheru  ise(/).  Indeed,  a  direction  that  the  per- 
sonal estate  shall  be  first  applied,  only  expresses  the  rule 
of  equity,  where,  as  in  a  case  of  this  nature,  no  intention 
appears  to  exonerate  the  personalty  from  the  payment  of 
(*)the  debts  ;  and,  therefore,  such  a  direction  cannot  be 
deemed  material. 

16.  Where  a  mere  power  is  given  to  trustees  to  sell,  for 
the  purpose  of  raising  as  much  money  as  the  personal 
estate  shall  prove  deficient  in  paying  the  debts,  or  debts 
and  legacies,  it  seems  that  unless  the  personal  estate  be 
actually  deficient,  the  power  does  not  arise,  and  conse- 
quently cannot  be  duly  executed(283).  This  was  express- 
ly decided  in  the  case  of  Dike  v.  Ricks(?w),  where,  in  a 
case  of  this  nature,  it  was  determined  by  Jones,  Croke  and 
Barkeley,  Justices,  unanimously,  that  the  condition  \^as  a 
precedent  condition,  and  that  the  performance  of  it  ought 
to  be  sufficiently  averred,  otherwise  the  power  would  not 
authorize  a  sale  ;  and  that  the  amount  of  the  debts,  and 
the  value  of  the  personal  estate,  ought  to  be  show^n,  so 
that  the  court  might  judge  whether  the  condition  was  per- 
formed or  not ;  and  also  that  so  much  only  of  the  estate 
could  be  sold  as  was  sufficient  for  payment  of  the  debts. 
And  the  case  of  Culpepper  v.  Aston(w),  also  appears  to 
be  an  authority,  that  in  such  a  case  a  purchaser  is  bound 
to  ascertain  the  deficiency  ;  for  in  that  case  the  will 
seems  to  have  given  a  mere  poiver(o)  to  the  executors  to 
raise  as  much  money  as  the  personal  estate  should  fall 
short  in    paying  the  debts.  .  The  will  was  revoked  pro 

{I)   See  the  12th  section  of  Mr.  Butler's  n.(l)  to  Co.  Litt.  209  b. 
(m)    Cro.   Car.  335  ;  Wm.  Jones,  327  ;   1   Ro.  Abr.    329,  pi.  9 ;   3 
Vin.  Abr.  419,  pi.  9. 

(n)   See  2  Cha.  Ca.  221. 
(o)  2  Cha.  Ca.  115. 

(283)   See  Welman  v.  Lawrence,  15   Mass.  Rep.  326.     Seymour  v. 
Bull,  3  Day,  388.      Williams  v.  Peyton,  4  Wheat,  77. 
(*48) 


OF  PURCHASE  MONEY.  53 

tanto  by  a  subsequent  conveyance  creating  a  direct  trust 
to  sell  and  pay  debts,  under  which  it  seems  the  purchaser 
bought ;  and  therefore  the  point  did  not  call  for  a  deci- 
sion. But  it  was  resolved,  that  by  the  trust  (that  is, 
power,)  in  the  will  to  sell,  the  purciiaser  did  purchase  at 
his  own  peril,  if  the  personal  estate  received  were  suffi- 
cient ;  but  that  if  the  trust  were  as  in  the  deed,  the  pur- 
chaser was  safe. 

(*)The  reader  must  be  aware,  that  as  the  power  is  not 
well  executed,  unless  there  be  a  deficiency,  a  purchaser 
must,  at  his  peri!,  ascertain  the  fact,  notwithstanding  that 
the  trust  be  for  payment  of  debts  generally  ;  or  being  for 
payment  of  particular  debts  or  legacies,  the  common  clause, 
that  the  trustee's  receipts  shall  be  sufficient  discharges,  be 
inserted  in  the  instrument  creating  the  trust. 

Wherever,  therefore,  a  power  of  this  nature  is  given, 
and  even  where  a  trust  for  such  purposes  is  raised,  it 
seems  advisable,  as  Mr.  Butler  remarks,  to  extend  this 
clause  a  degree  farther,  by  expressly  discharging  the  pur- 
chaser or  mortgagee  from  the  obligation  of  inquiring, 
whether  the  personal  estate  has  been  got  in  and  applied  ; 
and  by  expressly  authorising  the  trustees  to  raise  any 
money  they  may  think  proper  by  sale  or  mortgage, 
though  the  personal  estate  be  not  actually  got  in  or  ap- 
plied. For  it  frequently  happens,  that  the  getting  in  of 
the  personal  estate  is  attended  with  great  delay  and  diffi- 
culty; during  which  the  real  estate  cannot  perhaps  be 
resorted  to.  This  will  be  obviated  effectually  by  insert- 
ing a  clause  to  the  above  effect.  It  should,  however,  be 
accompanied  with  a  further  direction,  that  so  much  of  the 
personal  estate,  and  the  money  raised  under  the  trust,  as 
shall  remain  after  answering  the  purposes  of  the  trust, 
shall  be  laid  out  in  land,  to  be  settled  on  the  devisees  of 
the  real  estates(o). 

(o)  Butler's  n.  (1)  to  Co.  Litt.  290.  b. 

(*49, 


54 


OF  SEEING  TO  THE  APPLICATION 


17.  Where  a  purchaser  is  bound  to  see  the  money 
applied  according  to  the  trust,  and  the  trust  is  for  pay- 
ment of  debts,  or  legacies,  he  must  see  the  money  actually 
paid  to  the  creditors  or  legatees. 

In  cases  of  this  nature,  therefore,  each  creditor  or 
legatee,  upon  receiving  his  money,  should  give  as  many 
receipts  as  there  are  purchasers,  so  that  each  purchaser 
(*)may  have  one.  Or,  if  the  creditors  or  legatees  are  but 
few,  they  may  be  made  parties  to  the  cnoveyances. 

Another  mode  by  which  the  purchasers  may  be  secured 
is,  an  assignment  by  all  the  creditors  and  legatees  of 
their  debts  and  legacies  to  a  trustee,  with  a  declaration 
that  his  receipts  shall  be  sufficient  discharges  ;  and  then 
the  trustee  can  be  made  a  party  to  the  several  con- 
veyances. 

Sometimes  a  bill  is  filed  for  carrying  the  agreement 
into  execution,  when  the  purchase-money  is  of  course 
directed  to  be  paid  into  court ;  and  this  is  the  surest 
mode,  because  the  money  will  not  be  paid  out  of  court 
without  the  knowledge  of  the  purchaser. 

18.  If  the  names  of  the  trustees  be  inserted  in  the 
usual  clause,  that  the  receipts  of  the  trustees  shall  be 
discharges,  every  trustee  who  has  accepted  the  trust  must 
join  in  the  receipt  for  the  purchase-money,  although  he 
may  have  released  the  estate  to  the  other  trustees(p)  ; 
because,  notwithstanding  that  he  release  the  legal  estate 
to  his  co-trustees,  he  cannot  delegate  the  personal  trust 
and  confidence  reposed  in  him  ;  for  the  rule  is,  delegatus 
non  potest  delegare. 

To  obviate  this  difficulty,  which  frequently  occurs, 
it  might,  perhaps,  be  advisable  (instead  of  naming  the 
trustees  in  the  clause)  to  say,  that  the  receipts  "  of  the 
trustees  or  trustee,  for  the  time  being,  acting  in  the  execu- 

{p)  Crewe  v.  Dicken,  4  Ves.  jun.   97.     See  post.     Small  v.  Mar- 
wood,  9  Barn.  &  Cress.  307  ;  4  Maun.  &  llyl.  181. 
(*50) 


OF  PURCHASE  MONEY. 


55 


tion  of  the  trusts  hereby  created,"  shall  be  sufficient 
discharges.  This  would  probably  render  it  unnecessary 
for  a  trustee  who  had  released  the  estate  to  join  in  any 
receipt : — there  could  not  be  the  slightest  ground  to  con- 
tend, that  any  personal  trust  or  coniidence  was  given  to 
the  trustees  named  in  the  instrument  creating  the  trust ; 
and  therefore  the  receipt  of  the  trustees  acting  in  the 
(*)trusts,  for  the  time  being,  would  satisfy  as  well  the 
words  as  the  spirit  of  the  clause(9). 

19.  But  as  one  man  cannot  impose  a  trust  on  another 
against  his  consent,  a  trustee  who  has  refused  to  accept 
the  trust,  and  actually  renounced,  need  not  join  in  any 
receipts ;  in  such  cases  the  receipts  of  the  other  trustees 
\'\ill  be  sufficient  discharges(r).  And  it  seems,  that 
where  there  is  a  release  instead  of  a  disclaimer,  yet  if 
the  operation  of  the  act  is  disclaimer  the  release  must 
be  considered  as  a  disclaimer(.s).  This  of  course  cannot 
apply  to  any  case  where  the  trustee  has  acted  in  execu- 
tion of  the  trusts,  for  the  estate  is  then  vested  in  him,  and 
it  is  too  late  to  disclaim. 

20.  Where  an  estate  is  devised  or  conveyed  to  trustees 
to  sell  for  payment  of  debts  generally,  without  a  clause 
that  their  receipts  shall  be  discharges,  and  they  convey 
to  a  third  person,  ^or  the  purposes  of  the  trust,  sales  made 
by  him  are  said  to  be  as  effectual  as  sales  made  by  the 
trustees  themselves,  and  his  receipt  is  equally  a  discharge 
to  a  purchase r(/). 

21.  If  an  estate  is  vested  in  trustees  to  sell,  with  power 
to  give  receipts,  but  no  power  is  added  to  appoint 
new  trustees,  and  upon  a  bill  filed,  the  Court  appoints 

iq)  See  Co.  Lilt.  113  a. 

(r)  See  Sir  William  Smith  v.  Wheeler,  1  Ventr.  128  ;  Hawkins  v. 
Kemp,  3  East,  410;  Adams  v.  Taunton,  5  Madd.  436. 

(s)  Nicloson  v.  Wordsworth,  2  Swanst.  366. 

(t)  Hardwicker.  Mynd,  1  Anstr.  109.  See  Ld.  Braybrokev.  Inskip, 
8  Ves.  jun.  417  ;  sed  qu. 

(*61) 


^Q  OF  SEEING  TO  THE  APPLICATION. 

new  trustees,  they  can  give  a  valid  discharge  ;  for  the 
effect  of  the  conveyance  to  the  new  trustees  is  to  bind  the 
legal  estate,  and  the  decree  of  the  Court  binds  the  equity  ; 
so  that  the  new  trustees  have  the  same  power  to  give 
receipts  as  the  original  trustees  \iad(ii). 

(*)SECTION  II.  11 

Of  this  Liability,  with  reference  to  Leasehold  Estates. 


1.  We  have  already  seen,  that  however  leasehold 
estates  may  be  bequeathed,  they  must  go  to  the  execu- 
tors, to  be  applied,  in  the  first  place,  in  a  due  course  of 
administration,  which  is  tantamount  to  a  bequest  for 
payment  of  debts  generally.  And,  therefore,  in  analogy 
to  the  decisions  upon  devises  of  real  estates  for  a  similar 
purpose,  it  is  incontrovertibly  settled,  that  a  purchaser  of 
personalty  shall  in  no  case  be  bound  to  see  to  the  appli- 
cation of  the  purchase-money  where  he  purchases  bona 
fide,  and  without  notice  that  there  are  no  debts(?<;). 

This  principle  was  adhered  to  in  the  case  of  Humble 
V.  Bill(a;),  before  Sir  Nathan  Wright,  where  a  man  be- 
queathed a  specific  part  of  his  personalty  upon  trust  to 
raise  a  sum  of  money  for  his  daughter,  and  the  executors 
mortgaged  it,  pretending  want  of  assets.     The  decision 

(«)  Drayson  v.  Pocock,  4  Sim.  283. 

(to)  Elliot  V.  Merryman,  Barnard.  Rep.  Cha.  78  ;  2  Atk.  41.  See 
Watts  V.  Kancy,  Toth.  141  ;  S.  C.  ibid.  227,  by  the  name  of  Mutts  v. 
Kancie  ;  and  Nurton  v.  Nurton,  ibid. 

(x)  2  Vern.  444 ;  1  Eq.  Ca.  Abr.  358,  pi.  4. 

(*52) 


OF  PURCHASE  MONEY- 


57 


was,  however,  reversed  in  the  House  of  Lords(7/)  ;  but 
the  reversal  is  generally  supposed  to  have  proceeded 
from  proof  of  fraud,  and  has  not  been  attended  to  in 
subsequent  cases. 

Thus,  in  Ewer  v.  Corbet(2^),  it  was  expressly  holden, 
that  a  term  being  bequeathed  to  A.,  did  not  prevent  the 
executors  from  selling  it ;  and  that  notice  of  the  devise 
was  nothing,  as  every  person  buying  of  an  executor 
necessarily  must  have  such  notice.  And  the  Master  of 
(*)the  Rolls  said,  he  remembered  it  to  have  been  once 
ruled,  that  an  executor  could  not  make  agood  title  to  a  term 
to  a  purchaser,  and  that  was  in  the  case  of  Bill  v.  Humble  ; 
but  since  that  he  took  it  to  have  been  resolved,  and  with 
great  reason,  that  an  executor,  where  there  were  debts, 
might  sell  a  term ;  and  the  devisee  of  the  term  had  no 
other  remedy  but  against  the  executor  to  recover  the  value 
thereof,  if  there  were  sufficient  assets  for  the  payment  of 
debts. 

2.  This  doctrine  has  been  carried  so  far,  that  a  sale  in 
satisfaction  of  a  private  debt  of  the  executor  has  been 
holden  good(«)(284). 

But  in  the  first  authority  on  this  head(6),  it  appears 
that  the  testator  had  been  dead  two  years  before  the  as- 
signment, although  that  circumstance  is  not  mentioned  in 
the  report(c)  ;  and  it  might,  therefore,  be  supposed,  that 
the  executor  might  in  that  case  have  entitled  himself  to 

{if)  See  Savage  v.  Humble,  1  Bro.  P.  C.  71  ;  and  see  17  Ves.  jun. 
160,  161. 

{z)  2  P.  Wms.  148  ;  and  see  Burling  v.  Stonnard,  2  P.  Wrns.  150  ; 
and  Andrew  v.  Yv'rigley,  4  Bro.  C.  C.  137;  and  Dickenson  v.  Lockyer, 
4  Ves.  jun.  36. 

(«)  Nugent  V.  Gifford,  1  Atk.  463 ;  and  Mead  v.  Lord  Orrery,  3 
Atk.  235;  and  see  Ithell  u.  Beane,  1  Ves.  215. 

(/j)   Nugent  V.  Gifford. 

(c)    See  4  Bro.  C.  C.  13G. 

(284)    See  Robertson  v.  Ervell,  3  Munf.  1. 

VOL.   II.  8  (*63) 


58  O*'  SEEING  TO  THE  APPLICATION 

the  term,  on  account  of  advances  made  by  him  in  his 
trust(c?)  ;  and  it  also  appears  that  he  was  sole  residuary 
legatee(e).  On  the  former  ground  alone,  the  decision 
perhaps  cannot  be  supported  ;  for  Lord  Thurlow  decided 
differently  in  a  case  nearly  similar,  although  between  three 
and  four  years  had  elapsed  from  the  death  of  the  testator 
to  the  transaction^/). 

With  respect  to  the  second  authority  on  this  head(^), 
Lord  Kenyon  expressly  dissented  from  it  in  the  case  of 
Bonney  v.  Ridgard(/t)  ;  and  in  a  late  case(z),  where  an 
(*)executor,  shortly  after  the  decease  of  his  testatrix, 
transferred  stock,  part  of  her  estate,  to  his  bankers,  to 
secure  a  debt  due  from  him,  and  future  advances,  the 
bankers  swore  that  they  did  not  know  or  suspect,  that  the 
funds  were  not  the  property  of  the  executor,  either  as  ex- 
ecutor or  devisee  ;  and  it  appeared  in  evidence,  that  he 
represented  himself  as  absolutely  entitled  to  them,  under 
the  will,  subject  to  a  trifling  annuity,  and  a  few  small 
legacies ;  although  no  fraud  was  proved,  yet  as  gross  neg- 
ligence appeared  in  the  bankers  not  inspecting  the  will,  the 
funds  were  holden  to  be  liable  to  the  legacies  given  by 
the  will. 

It  seems  clear,  therefore,  that  an  executor  cannot  now 
dispose  of  his  testator's  property,  as  a  security  for,  or  in 
payment  or  satisfaction  of  his  own  debts. 

In  a  late  case,  however,  where  a  considerable  time 

(d)   See  7  Ves.  jun.  107. 

(c)  See  17  Yes.  jun.  163. 

(/)  Scott  r.  Tyler,  2  Dick.  724;  2  Bro.  C.  C.  431  ;  and  see  17 
Ves.  jun.  164. 

(g)  Meade  v.  Lord  Orrery. 

{h)  2  Bro.  C.  C.  433  ;  4  Bro.  C.  C.  130;  7  Ves.  jun.  167,  cited  ; 
and  see  Andrew  v.  Wrigley,  4  Bro.  C.  C.  125. 

(t)  Hill  V.  Simpson,  7  Ves.  jun.  152  ;  and  see  Lowther  v.  Lowther, 
13  Ves.  jun.  65;  17  Ves.  jun.  169;  and  Cubbidge  r.  Boatwright,  1 
Russ.  549. 

(*54) 


OF  PURCHASE  MONEY.  ^g 

after  the  death  of  the  testator,  part  of  the  assets  were 
pledged  with  bankers  as  a  security  for  monies  advanced 
at  the  time,  and  future  advances  to  the  two  acting  execu- 
tors ;  a  bill  filed  bj  co-executors,  who  had  not  acted  in 
the  affairs  of  the  testator,  for  delivery  up  of  the  assets, 
was  dismissed,  but  without  deciding  what  the  equity 
^^'ould  be  if  the  title  was  nothing  more  than  deposit,  and 
the  bill  had  been  filed  by  a  legatee(A:). 

3.  If  the  executor  sell  at  an  undervalue,  or  to  one  who 
has  notice  that  there  are  no  debts,  or  that  all  the  debts 
are  paid(/),  or  if  there  be  any  express  or  implied  fraud  or 
collusion  between  the  executor  and  purchaser,  the  sale 
cannot  be  supported(m). 

(*)Fraud  and  covin  will  vitiate  any  transaction,  and  turn 
it  to  a  mere  color.  If  one  concerts  with  an  executor, 
or  legatee,  by  obtaining  the  testator's  effects  at  a  nomi- 
nal price,  or  at  a  fraudulent  undervalue,  or  by^  applying 
the  real  value  to  the  purchase  of  other  subjects  for  his 
own  behoof,  or  in  extinguishing  the  private  debt  of  the 
executor,  or  in  any  other  manner  (which  Lord  Eldon  has 
said,  are  very  material  words)(n),  contrary  to  the  duty 
of  office  of  executor,  such  concert  will  involve  the  seem- 
ing purchaser,  and  make  him  liable  for  the  full  value(o). 

4.  But  if  the  legatee  permit  a  long  time  to  elapse  with- 
out asserting  his  claim,  and   there  are  several  mesne  pur- 

{k)  M'Leod  V.  Drummond,  14  Yes.  jun.  353  ;  17  Ves.  jun.  162  ; 
and  see  Farr  v.  Newman,  4  Term  Rep.  621 ;  Keane  v.  Roberts,  4 
Madd.  332. 

(/)  See  Ewer  v.  Corbet,  2  P.  VVms.  148. 

(«i)  Crane  v.  Drake,  2  Vern.  616  ;  Yin.  43,  pi.  13  ;  18  Yin.  121, 
pi.  11,  side  notes;  Bonnej  v.  Ridgard,  2  Bro.  C.  C.  438,  cited  ;  Nu- 
gent r.  Gifford,  1  Atk.  463;  and  see  Gilb.  Eq.  Rep.  113  ;  Free.  Cha. 
434  ;  and  Whale  v.  Booth,  4  Term  Rep.  625,  n. 

(n)   17  Yes.  jun.  167. 

(o)  Per  Lord  Thurlow,  2  Dick.  725  ;  and  see  1  Burr.  475. 

(*5f) 


gQ  OF  SEEING  TO  THE  APPLICATION 

chasers,  equity  will  not  set  aside  the  sale,  although  there 
are  suspicious  circumstances  of  fraud(/;). 

5.  And  although  the  legatee  has  only  a  contingent  in- 
terest, yet  that  will  be  no  excuse  for  delay(9') ;  because 
he  has  such  an  interest  as  will  entitle  him  to  know  what 
debts  the  testator  owed,  and  what  part  of  his  estate  has 
been  applied  to  the  payment  of  them.  And  in  Howorth 
V.  Powell,  it  was  laid  down  by  Lord  Keeper  Henley,  that 
a  party  having  a  claim  in  remainder  to  an  estate,  though 
not  to  the  possession,  if  he  sees  the  possession  wrongfully 
usurped,  ought  to  file  his  bill  for  relief  before  his  right 
to  possession  accrues :  for  otherwise  he  stands  by  and 
countenances  the  possessor  in  his  exercise  of  acts  of 
ownership(r). 

6.  It  remains  to  observe,  that  Lord  Hardwicke 
thought(5)  the  reversal  of  the  case  of  Humble  v.  Bill(i) 
might  be  proper,  because  the  charge  was  upon  a  particu- 
lar (*)part  of  the  estate  :  his  Lordship  not,  however, 
meaning  to  impugn  the  general  doctrine,  which  he  fre- 
quently admitted,  and  indeed  carried  farther  than  any 
other  Judge. 

This  distinction  Lord  Hardwicke  appears  to  have  been 
inclined  to  follow  in  a  case(M)  where  a  specific  legatee  bf 
a  mortgage  brought  a  bill  to  foreclose  against  the  repre- 
sentative of  the  mortgagor,  who  pleaded  an  account  set- 
tled between  him  and  the  executor  of  the  mortgagee,  and 

ip)  Bonney  r.  Ridgard,  2  Bro.  C.  C.  438  ;  17  Ves.  jun.  97,  cited  ; 
and  see  17  Ves.  jun.  165. 

(q)   Andrew  r.  Wrigley,  4  Bro.  C.  C.  125. 

(r)  Ch.  T.  T.  1758,  MS.  ;   1  Eden,  351,  nom.  Howarth  v.  Deem. 

(5)  See  Meadr.  Lord  Orrery,  3  Atk.  241  ;  and  see  17  Ves.  jun.  161, 
162. 

{!)    Sup7-a,  p.  52. 

(«)  Langley  v.  Earl  of  Oxford,  Ambl.  17  ;  and  see  Elliott  v.  Mer- 
ryman,  Barnard.  Ch.  Rep.  78  ;  and  Andrew  v.  Wrigley,  4  Bro.  C.  C. 
125. 

(*o6) 


OF  PURCHASE  MONEY. 


61 


a  release.  For  he  thought  the  devisee  had  a  specific  lien 
on  the  estate,  and  as  the  mortgagor  had  notice  of  the 
bequest  he  was  bound  by  it.  And  he  was  inclined  to 
over-rule  the  plea  of  the  release  ;  but  the  case  of  Ewer  v, 
Corbet(a:)  being  cited,  it  was  ordered  to  stand  for  an 
answer,  with  liberty  to  except.  The  case  was  afterwards 
debated  on  several  days,  and  the  Chancellor  ultimately 
determined,  that  the  plaintiff  had  not  equity  sufficient  to 
support  his  bill,  and  accordingly  dismissed  it,  but  without 
costs(?/). 

Upon  principle  as  well  as  upon  the  authority  of 
Langley  and  Lord  Oxford,  the  better  opinion  clearly  is, 
that  a  particular  chattel  specifically  bequeathed  may  be 
purchased  from  an  executor,  but  certainly,  in  most  cases, 
such  a  purchase  could  not  be  recommended  without  the 
concurrence  of  the  legatee,  because,  independently  of 
the  general  question,  the  executor  may  have  assented  to 
the  bequest(2). 

7.  But  of  course  this  question  cannot  arise  where  the 
specific  legatee  of  the  chattel  is*also  executor(a). 

(x)  Supi-a,  p.  52. 

(«/)  See  Reg.  Lib.  B.  1747,  fol.  300. 

(z)  See  Thomlinson  v.  Smith,  Rep.  temp.  Fincb,  378. 

{a)   Taylor  v.  Hawkins,  8  Yes.  jun.  209. 


[  62] 


^CHAPTER  XII. 


OF    THE    vendor's    LIEN    ON    THE    ESTATE    SOLD    FOR 
THE    PURCHASE    MONEY,    IF    NOT    PAID. 


I.  Where  a  vendor  delivers  possession  of  an  estate  to 
a  purchaser,  without  receiving  the  purchase-money,  equi- 
ty, whether  the  estate  be(6)(I)  or  be  not(c)(285)  convey- 
ed, and  although  there  was  not  any  special  agreement  for 
that  purpose,  and  whether  the  estate  be  freehold  or  copy- 
hold((/),  gives  the  vendor  a  lien  on  the  laud  for  the  mon- 
ey ;(286)  so,  on  the  other  hand,  if  the   vendor  cannot 

(6)  Chapman  v.  Tanner,  1  Vern.  267  ;  PoUexfen  v.  Moore,  3  Atk. 
272  ;  and  see  1  Bro.  C.  C.  302,  424;  and  6  A'es.  jun.  483  ;  Mack- 
reth  r.  Symmons,  15  Ves.  jun.  329. 

(c)  Smith  V.  Hibbard,  2  Dick.  730  ;  Charles  v.  Andrews,  9  Mod. 
152;  Topham  r.  Constantine,  1  Taml.  135. 

{d)  Winter  v.  Ld.  Anson,  3  Russ.  488. 

(I)  But  note,  that  in  Chapman  v.  Tanner  (see  Anibl.  726  ;  6  Ves. 
jun.  757,)  and  Pollexfen  v.  Moore,  there  were  special  agreements  that 
the  vendor  should  keep  the  writings.  Indeed,  in  the  latter  case,  posses- 
sion had  not  been  delivered.  See  Mr.  Sanders's  note  to  the  case  in 
his  edition  of  Atkins. 

(285)  See  M'Tears  Les.  v.  Buttorf,  4  Yeates,  300.  Cole  v.  Scotl, 
2  Wash.  141. 

(286)  See  Garson  v.  Green,  1  Johns.  Ch'.  Rep.  308.  Gilman  v. 
Broivn,  1  Mason's  Rep.  192.  S.  C.  4  Wheat.  255.  and  see  note  in  p. 
192.  Irvine  v.  Campbell,  6  Binn.  118.  Williams  \.  Price,  5  Munf. 
Rep.  607.  Stouffers  Les.  v.  Coleman,  1  Yeates,  393.  fVliite  v.  Cas- 
anave,  1  Har.  &.  Johns.  106.     Ridgely  v.  Carey,  4  Har.  M'Heu.  167. 

(*67) 


OF  THE  VENDOR'S  UEN,  &c.  gg 

make  a  title,  and  the  purchaser  has  paid  any  part  of  the 
purchase-money,  it  seems  that  he  has  a  lien  for  it  on  the 
estate,  although  he  may  have  taken  a  distinct  security  for 
the  money  advanced(e)(II)(287). 

And  even  where  the  agreement  itself  provides  for  the 
security  of  the  purchase-money,  by  a  bond  to  remain  at 
interest  during  the  purchaser's  life,  the  seller  will  not  lose 
(*)his  lien.  The  case  was  held  not  to  be  distinguishable 
from  the  common  case  of  an  agreement,  made  after  the 
written  agreement,  to  take  a  bond(y).  But  this  point, 
upon  the  case  again  coming  on,  was  decided  the  other 
way,  and  the  lien-^vas  held  not  to  exist(g^).  Upon  appeal, 
the  Lord  Chancellor  reversed  the  latter  decision(A),  and 
from  his  decision  an  appeal  was  lodged  in  the  House  of 
Lords,  but  it  has  since  been  withdrawn. 

Upon  the  authority  of  this  case,  Clarke  v.  Royle  was 
decided (/).  There  the  estate  was  conveyed  in  consider- 
ation of  the  purchaser's  covenants,  and  he  covenanted  to 
pay  an  annuity  to  the  seller  for  his  life ;  and  in  case  he 
(the  purchaser)  married,  to  pay  3000/.  to  certain  per- 
sons, in  such  manner  as  the  seller  should  think  fit ;  and 
it  was  held   that  the  purchaser  had   no  lien  for  the  an- 

(e)  Laconr.  Mertins,3  Atk.  1.  See  Oxenham  r.  Esdaile,  2  You.  & 
Jerv.  493,  3  You.  &  Jerv.  262. 

(/)  Winter  v.  Lord  Anson,  V.  C.  27  Nov.  182 1,  MS. 
ig)    1  Sim.  &  Stu.  434. 
[h)   3  Russ.  488. 
(t)   3  Sim.  499. 

(II)  As  to  chattels  capable  of  delivery,  as  timber  felled,  see  ex  parte 
Gvvyne,  12  Ves.  jun.  379. 

Hatcher  v.  Hatcher,  1  Rand.  63.  Cox  v.  Femvick,  3  Bibb,  183.  Ken- 
nedtj  v.  Woolfolk,  3  Hayw.  197.  See  contra,  Wragg  v.  Comptroller 
General,  2  Des.  509. 

(287)  So,  where  the  contract  of  sale  is  dissolved,  the  vendee  has  a 
lien  on  the  land,  for  the  purchase  money,  and  interest,  and  also  for  the 
value  of  improvements.     Griffith  v.  Depeiv,  3  Marsh.  179. 


64 


OF  THE  VENDOR'S  LIEN  FOR 


nuity,  and  that  there  was  none  for  the  3,000/.  The  Vice- 
Chancellor  said,  that  it  appeared  to  him  that  Lord  Eldon, 
in  Mackreth  v.  Synimons,  expressly  over-ruled  the  deci- 
sion in  Tardiffe  v.  Scrugan.  Besides,  the  case  now 
before  him  was  not  similar  to  Tardiffe  v.  Scrugan,  for  in 
that  case  there  was  simply  a  bond  given  for  the  annuity ; 
but  here  the  parties  expressly  recite,  that  A.  had  agreed 
to  convey  the  estates  to  B.,  in  consideration  of  his  enter- 
ing into  the  covenant  for  payment  of  the  annuity,  and  in 
consideration  of  his  entering  into  the  other  covenant 
thereinafter  contained.  So  that  the  release  states  dis- 
tinctly the  two  circumstances  that  form  the  consideration  ; 
and  then  it  is  witnessed,  that  in  consideration  of  the 
covenants  of  B.,  in  the  indenture  contained,  A,  conveys 
the  premises  to  him.  And  then  it  is  further  witnessed, 
that  in  pursuance  of  the  agreement  on  the  part  of  B.  for 
entering  into  such  covenants  as  aforesaid,  &c.  So  that 
(*)the  deed  plainly  marks  out  that  the  consideration  on 
the  one  side  was  the  conveyance  of  the  estate",  and  on  the 
other  the  entering  into  the  covenants.  Then  why  was  he 
to  declare,  that  in  respect  of  this  annuity,  and  of  the 
sum  which  was  payable  on  a  contingency,  and  which 
therefore  never  might  be  payable,  there  was  to  be  a  lien 
on  the  purchased  estates  ?  Why  should  he  go  farther 
than  any  of  the  cases  that  had  been  hitherto  decided 
upon  the  subject  of  lien  on  purchased  estates,  and  do  that 
which  appeared  to  be  contrary  to  the  intention  of  the  par- 
ties ?  His  Honor  considered  that  this  case  was  decided 
by  the  authority  of  Winter  v.  Lord  Anson. 

A  stipulation  that  the  purchase-money  should  be  repaid 
within  two  years  after  a  resale,  was  held  to  discharge 
the  vendor's  lien(A:). 

But  equity  would  not  raise  this  equitable  lien  in  favor 

(k)  Ex  parte  Parkes,  1  Glyn  &  Jam.  228. 
(*59) 


PURCHASE  MONEY  UNPAID. 


65 


of  a  papist  incapable  oi"  purchasing(/),  for  that  would 
have  given  him  an  interest  in  land. (288) 

If  a  vendor  take  a  distinct  and  independent  security  for 
the  purchase-money,  his  lien  on  the  estate  is  gone ;  such 
a  security  is  evidence  that  he  did  not  trust  to  the  estate  as 
a  pledge  for  his  money(?«)(289). 

Thus,  upon  the  sale  of  an  estate,  the  vendor  accepted 
some  stock  for  the  money(w),  with  an  agreement,  that  in 
case  it  did  not  within  a  limited  time  produce  a  sum  nam- 
ed, the  purchaser  should  make  it  up  that  sum.  The  stock 
proved  deficient ;  and  Sir  William  Grant  held,  that  the 
vendor  had  no  lien  on  the  estate  for  the  deficiency :  he 
thought  that  the  vendee  could  not  have  any  motive  for 
(*)parting  with  his  stock,  but  to  have  the  absolute  domin- 
ion over  the  land.  It  was  impossible,  his  Honor  said,  that 
it  could  be   intended   that   the   vendor  should  have  this 

(/)   Harrison  v.  Soulhcote,  2  Ves.  389.     See  now  10  Geo.  3. 

{in)  See  6  Ves.  jiin.  483  ;  and  see  the  observations  of  Lord  Eldon 
on  this  case  in  15  Ves.  jun.  348,  349. 

(n)  Nairn  v.  Prowse,  6  Ves.  jun.  752  ;  but  see  Lord  Eldon's  obser- 
vations, post. 

(288)  A  court  of  equity  will  not  decree  a  specific  performance  of  a 
contract  relating  to  lands,  in  favor  of  an  alien,  it  being  against  the  ge- 
neral policy  of  the  law.  Orr  v.  Hodgson,  4  Wheat.  465.  But  (he  dis- 
abilities of  an  alien  are  distinguishable  from  those  of  a  papist  in  Eng' 
land.  See  Craig  v.  Leslie,  3  Wheat.  688,  589. ;  and  see  note  in  Jack- 
son V.  Clark,  3  Wheat.  12. 

(289)  See  Tayloe  v.  Adams,  Gilmer,  329.  See  also  Broivn  v.  Gil- 
man,  4  Wheat.  255,  291.  Cox  v.  Femvick,  3  Bibb,  183.  The  lien  of 
the  vendor  for  unpaid  purchase  money,  may  be  waived  by  the  acts  of  the 
parties,  shewing,  that  it  is  not  intended  to  be  retained.  Broivn  v.  Gil- 
man,  ut  supra.  See  Garson  v.  Green,  1  Johns.  Ch.  Rep.  308.  If,  on 
a  sale  of  land,  the  vendor  take  bohds  with  personal  security,  he  loses 
his  lien  upon  the  land.  Frances  v.  Huzlerigg,  Hardin,  48.  But  it 
seems,  that  where  the  vendee  gave  a  bond,  with  surety,  for  the  purchase 
money,  and  received  no  conveyance,  the  vendor  will  not  lose  his  lien. 
Hatcher  v.  Hatcher,  1  Rand.  53.  See  further,  Cole  v.  Scott,  2  Wash. 
142.      Wilson  V.  Graham's  Vxr.  5  Munf.  297. 

VOL.   II.  9  (*60) 


66 


OF  THE  VENDOR'S  LIEN  FOR 


double  security,  an  equitable  mortgage  and  a  pledge, 
which  latter,  if  the  stock  should  rise  a  little,  would  be 
amply  sufficient  to  answer  the  purchase-money. 

And  the  same  rule  must,  it  has  been  said,  prevail  where 
a  vendor  accepts  a  mortgage  of  another  estate  for  the 
purchase-money,  the  obvious  intention  of  burthening  one 
estate  being,  that  the  other  shall  remain  free  and  unin- 
cumbered(o) ;  so,  even  where  the  vendor  takes  a  mort- 
gage of  the  estate  sold  for  only  part  of  the  purchase- 
money  ;  because,  by  taking  a  mortgage  for  part,  he  clearly 
evinces  his  election,  that  the  estate  should  be  charged 
with  that  part  only(7?)(290). 

Lord  Eldon,  however,  has  said,  that  it  did  not  appear 
to  him  a  violent  conclusion  as  between  vendor  and  vendee, 
that  notwithstanding  a  mortgage,  the  lien  should  sub- 
8181(9).  It  must  not,  he  added,  be  understood,  that  a 
mortgage  taken  is  to  be  considered  as  a  conclusive 
ground  for  the  inference,  that  a  lien  was  not  intended,  as 
he  could  put  many,  instances,  that  a  mortgage  of  another 
estate  for  the  purchase-money,  would  not  be  decisive  evi- 
dence of  an  intention  to  give  up  the  lien,  though  in  the 
ordinary  case,  a  man  has  always  greater  security  for  his 
money  upon  a  mortgage,  than  value  for  his  money  upon  a 
purchase  ;  and  the  question  must  be,  whether,  under  the 
circumstances  of   that  particular  case,  attending  to  the 

(o)  See  Nairn  v.  Prowse  ;  but  see  16  Ves.  jun.  341  ;  2  Ball  &  Bent. 
515. 

(p)  Bond  V.  Kent,  2  Vern.  281.     See  1  Scho.  &  Lef.  135. 

(g)  See  16  Ves.  jun,  341  ;  and  see  Cowell  v.  Simpson,  16  Ves.  jun. 
278,  280. 

(290)  So,  where  it  is  agreed,  that  the  lien  shall  be  retained  to  a  cer- 
tain extent,  this  shall  be  deemed  a  waiver  of  tha  Hen  to  any  greater  ex- 
tent. Brown  v.  Gilman,  4  Wheat.  255,  290.  And  so,  where  a  part  of 
the  purchase  money  is  paid,  the  lien  shall  be  good  for  the  residue  ;  and 
the  purchaser  is  to  be  considered  as  a  trustee  for  the  amount  unpaid. 
Garson  v.  Green,  1  Johns.  Ch.  Rep.  308. 


PURCHASE  MONEY  UNPAID. 


67 


worth  of  that  very  mortgage,  the  inference  arises.  In  the 
instance  of  a  pledge  of  stock,  does  it  necessarily  follow 
that  the  vendor,  consulting  the  convenience  of  the  pur- 
chaser, (*)by  permitting  him  to  have  the  chance  of  the 
benefit,  therefore  gives  up  the  lien  which  he  has  ?  The 
doctrine,  as  to  taking  a  mortgage  or  pledge,  would  be 
carried  too  far,  if  it  is  understood  as  applicable  to  all 
cases,  that  a  man  taking  one  pledge,  therefore  necessarily 
gives  up  another,  which  must,  his  Lordship  thought,  be 
laid  down  upon  the  circumstances  of  each  case,  rather 
than  universally(r). 

A  bond,  and  a  mortgage  of  part  of  the  estate,  have 
been  held  to  exclude  the  lien  over  the  rest  of  the 
estate(5). 

But  it  seems,  that  taking  a  covenant,  bond  or  note,  for 
the  purchase-money,  will  not  affect  the  vendor's  lien(291). 

This  was  settled  by  the  case  of  Hearne  v.  Botelers(i), 
where  a  bond  was  taken  for  the  money,  and  some  of  it 
remained  unpaid,  and  the  bond  was  lost ;  for  the  opinion 
of  the  Court  was  to  charge  the  defendants,  in  regard  of 
the  land  in  their  possession,  with  the  payment  thereof;  on 
the  ground,  it  should  seem,  that  taking  a  bond  did  not 
deprive  the  vendor  of  his  equitable  lien  ;  for  unless  he 
had  such  a  lien,  the  loss  of  the  bond  would  hardly  be  a 
ground  to  charge  the  money  on  the  estate(2f). 

So,  in-  Gibbons  v.  Baddall(.T),  it  was  said,   that  if  A. 

(r)   Mackreth  v.  Symmons,  15  Ves.  jun.  348,  349. 
(s)  Capper  V.  Spottiswoode,  1  Taml.  21. 

{t)  Gary's  Rep.  Cha.  25  ;  and  see  TardifFr.  Scrughan,  1  Bro.  C.  C. 
422,  cited  ;  and  Harrison  v.  Southcote,  2  Yes.  389. 
(«)  But  see  15  Ves.  jun.  338,  343,  pej-  Lord  Eldon. 
(x)   2  Eq.  Ca.  Ab.  682,  n.  (b)  to  (D.) ;  Ex  parte  Peake,  1  Madd.  346. 

(291)  Garson  v.  Green,  1  Johns.  Ch.  Rep.  308.  White  v.  Casanave, 
1  Har.  &  Johns.  106.  Cox  v.  Femvicke,  3  Bibb.  183.  Kennedy  v. 
fVoolfolk,  3  Hayw.  197.  See  Dtcval  v.  Bibb,  4  Hen.  &  Munf.  113. 
Stoiiffer's  Les.  v.  Coleman,  1  Yeates,  393. 

(*6n 


CO  OF  THE  VENDOR'S  LIEN  FOR 

sells  an  estate,  and  takes  a  promissory  note  for  part  of  the 
purchase-money,  and  then  the  purchaser  sells  to  B.,  who 
has  notice  that  A.  had  not  received  all  his  purchase-money, 
the  land  in  equity  is  chargeable  in  the  hands  of  B.,  with 
the  money  due  on  the  note.  In  this  case,  therefore,  the 
(*)existence  of  the  equitable  lien  was  considered  as  a 
point  perfectly  settled. 

But  in  Fawell  v.  Heelis(//),  where  a  receipt  was  in- 
dorsed on  the  deed  for  the  purchase-money(I),  although 
it  was  not  actually  paid,  and  the  vendor  took  a  bond  for 
the  purchase-money,  Lord  Bathurst  held  that  he  had 
thereby  departed  with  his  lien.  He  said,  he  did  not  find 
an  instance  where  a  bond  had  been  taken  for  the  consid- 
eration-money(2:).  It  was  evident  the  vendor  had  an 
opinion  of  the  purchaser  at  the  time,  otherwise  he  would 
not  have  let  the  money  remain  in  his  hands.  I  consider 
it,  he  added,  as  a  transaction  distinct,  and  independent  of 
the  purchase  :  he  lends  him  the  money,  and  he  chooses 
his  security,  and  I  think  he  must  abide  by  it ;  therefore 
let  the  bill  be  dismissed. 

In  a  subsequent  case(rt),  however,  Lord  Rosslyn  was 
decidedly  of  opinion  against  the  doctrine  laid  down  by 
Lord  Bathurst.  After  commenting  on  other  cases,  he 
said,  the  case  of  Fawell  and  Heelis  remained  ;  there  Lord 

(y)  Ambl.  724  ;   1  Bro.  C.  C.  421,  n.  ;  2  Dick.  485. 
(r)    Vide  Heale  v.  Botelers,  and  Gibbons  v.  Baddall,  ubi  siqyrn. 
(a)    Blackburn  v.  Gregson,  1  Cox,  90  ;   1  Bro.  C.  C.  420  ;  and   see 
Tardifte  v.  Scriighan,  ibid.  423,  cited;  and  15  Yes.  jun.  336,  337. 

(I)  This  of  course  could  not  make  any  difference  in  the  case,  for  a 
receipt  of  the  purchase-money,  although  signed  by  the  seller,  is  in 
equity  of  no  avail  if  the  money  be  not  actually  paid.  See  Coppin 
V.  Coppin,  2  P.  Wnis.  291 ;  but  at  law  the  receipt  cannot  be  got  over, 
Biovvntree  v.  Jacob,  2  Taunt.  141,  unless  merely  fraudulent,  Henderson 
V.  Wild,  2  Campb.  561  ;  see  Lanipon  v.  Corpe,  5  Barn.  &  Aid.  606  ; 
1  Dowl.  &  Ryl.  211,  S.  C.  ;  and  in  equity  payment  will  be  presumed 
after  a  great  length  of  time,  Bidlake  v.  Arundell,  1  Cha.  Rep.  93. 
•      (*62) 


PURCHASE  MONEY  UNPAID. 


69 


Bathurst  doubted  whether  there  was  such  an  equitable 
lien  ;  it  became,  therefore,  of  great  consequence  that  it 
should  be  spoken  to.  It  struck  him  always,  he  said,  that 
there  was  such  a  lien,  and  that  it  was  so  from  the  founda- 
tion (*)of  the  court.  A  bargain  and  sale  must  be  for  mon- 
ey paid.  If  an  estate  is  sold,  and  no  part  of  the  money 
paid,  the  vendee  is  a  trustee  :  then,  if  part  be  paid,  was 
it  not  the  same  as  to  that  which  was  unpaid  ?(292) 

In  the  late  case  of  Nairn  v.  Prowse(6),  the  Master  of 
the  Rolls  seemed  to  incline  to  the  same  opinion.  He 
said,  that  by  conveying  the  estate  without  obtaining 
payment,  a  degree  of  credit  was  necessarily  given  to  the 
vendee.  That  credit  might  be  given  upon  the  confidence 
of  the  existence  of  such  a  lien.  The  knowledge  of  that 
might  be  the  motive  for  permitting  the  estate  to  pass 
without  payment.  Then  it  may  be  argued,  that  taking 
a  note  or  bond  cannot  materially  vary  the  case.  A  credit 
is  still  given  to  him,  and  may  be  given  from  the  same 
motive  ;  not  to  supersede  the  lien,  but  for  the  purpose 
of  ascertaining  the  debt,  and  countervailing  the  receipt 
indorsed  upon  the  conveyance. 

And  in  a  case  where  a  receipt  was  given  for  the  whole 
purchase-money,  but  part  was  retained,  and  a  promissory 
note  given  for  it  to  a  trustee  for  the  vendor,  there  being 
debts  affecting  the  estate,  the  amount  of  which  was  not 
ascertained.  Lord  Redesdale  held,  that  it  lies  on  the 
purchaser  to  show  that  the  vendor  agreed  to  rest  on  the 
collateral  security ;  prima  facie  the  purchase-money  is 
a  lien  on  the  lands.  In  this  case,  he  said,  that  the 
purchaser's  note  was  nothing  but  a  mere  memorandum, 
put  into  the  hands  of  a  trustee,  to  enable  the  purchaser 
first  to  pay  oiF  incumbrances,  and  then  to  be  subject  to 

[h]  6  Yes.  JLin.  752. 

(292)   See  Garson  v.  Green^  1  Johns.  Ch.  Rep.  309. 

(*63) 


70  OF  THE  VENDOR'S  LIEN  FOR 

an  account,  and  the  balance  only  to  be  received  by  the 
vendor.  It  cannot  be  considered  that  the  vendor  relied 
on  it  as  a  security.  Suppose  bills  given  as  part  of  the 
purchase-money,  and  suppose  them  drawn  on  an  insolvent 
house,  shall,  his  Lordship  asked,  the  acceptance  of  such 
(*)bills  discharge  the  vendor's  lien  ?  They  are  taken, 
he  added,  not  as  a  security,  but  as  a  mode  of  pay- 
ment (c)  (293). 

And  in  a  late  case.  Where  the  purchase-money  was 
paid  by  bills  drawn  by  the  purchaser  and  accepted  by 
him  and  his  partner,  payable  to  the  seller's  order.  Sir  Wm. 
Grant,  Master  of  the  Rolls,  determined  that  the  lien  was 
not  gone(f/).  It  was  insisted,  that  by  taking  bills  accepted 
by  the  partnership,  the  vendor  got  the  security  of  a  third 
person,  which  must  be  considered  as  a  substitution  for  the 
lien.  His  Honor  observed,  that  what  might  be  the  effect 
of  a  security,  properly  so  denominated,  of  a  third  person, 
had  never,  he  believed,  been  absolutely  determined  ;  but 
he  perfectly  concurred  in  the  opinion  expressed  by  Lord 
Redesdale  in  Hughes  v.  Kearney(e),  that  bills  of  exchange 
are  to  be  considered  not  as  a  security,  but  merely  as  a 
mode  of  payment.  That  is  obvious  from  attending  to  the 
nature  of  a  bill  of  exchange  ;  it  is  an  order  by  the  drawer 
for  the  payment  of  money  which  he  has  in  the  hands  of 
the  drawee  to  the  holder  of  that  bill.  The  acceptor,  by 
his  acceptance,  acknowledges  that  he  has  money  belong- 
ing to  the  drawer  in  his  hands,  and  engages  to  have  that 
money  forthcoming  according  to  the  requisition  of  the 
bill.  The  acceptor  is  never  considered  as  a  surety  for 
the  debt  of  another.  By  accepting  he  admits  himself  to 
be  a  debtor  to  the  drawer.     The  subject  of  the  bill  is,  in 

(c)  Hughes  V.  Kearney,  1  Scho.  &  Lef.  132. 

(d)  Grant  v.  Shills,  2  Yes.  &  Bea.  306. 

(e)  1  Scho.  &  Lef.  132.     See  136. 


(293)  See  Garson  v.  Green,  1  Johns.  Ch.  Rep.  309. 

(*64) 


PURCHASE  MONEY  UNPAID.  -^j 

contemplation  of  law,  the  drawer's  own  money,  which  he 
authorizes  the  creditor  to  receive  instead  of  receiving  it 
himself,  and  afterwards  handing  it  over  to  such  creditor. 

And  in  such  cases  it  is  not  important  that  the  note  or 
bill  has  been  negotiated(y). 

(*)The  same  point  seems  to  have  been  decided  in  Co- 
mer V.  Walklej(^).  A  trustee  sold  an  estate  for  720/. : 
600/.  was  left  in  the  purchaser's  hands  as  an  indemnity 
against  an  annuity  ;  and  a  deed  was  entered  into  between 
him  and  the  trustee,  whereby  he  covenanted  to  pay  inte- 
rest on  the  600/.,  and  when  the  annuity  should  cease  or 
be  discharged,  to  pay  the  money  to  the  trustee.  By  se- 
veral conveyances,  &c.  the  estate  became  again  vested  in 
trustees,  upon  trust  to  sell ;  and  they  sold  the  estate  to  a 
purchaser,  who  objected  to  complete  his  contract  without 
the  concurrence  of  the  person  entitled  to  the  residue  of 
the  600/.  then  unpaid.  Two  bills  were  filed,  one  by  the 
person  entitled  to  the  residue  of  the  600/.  against  the 
purchaser  and  others,  for  payment  of  it ;  and  the  other  by 
the  purchaser,  who  had  been  in  possession  twenty-two 
years,  for  a  specific  performance,  which  was  accordingly 
decreed,  and  his  costs  in  both  causes  were  allowed.  The 
proper  accounts  of  the  personal  estate  were  directed  to  be 
taken  in  the  first  cause,  but  the  question,  out  of  what 
estates  any  deficiencies  should  be  made  good,  was  re- 
served :  so  that  it  does  not  appear  that  the  Court  held 
the  money  to  be  a  lien  on  the  land  any  further  than  by 
giving  the  purchaser  his  costs  in  both  causes  ;  which  cir- 
cumstance alone  is,  however,  conceived  to  be  decisive. 
And  the  question  has  received  the  same  decision  in  a 
recent  case  before  Lord  Eldon,  after  an  elaborate  review 
of  all  the  authorities(A). 

(/)  Ex  parte  Loaring,  2  Rose,  79.     But  it  is  otherwise  at  law  upon 
a  sale  of  goods,  Burney  v.  Poyntz,  Nev.  &  Shann.  229. 
ig)   Reg.  Lib.  A.  1784,  fol.  625  ;  vide  supra,  p.  46. 
{h)   Mackreth  v.  Symmons,  15  Ves.  jun.  329.     The  case  was  after- 

(*65) 


72 


OF  THE  VENDORS  LIEN  FOR 


Upon  the  whole,  therefore,  it  seems  quite  clear,  that 
taking  a  covenant,  l)ond  or  note,  for  the  purchase-money, 
or  any  part  of  it,  will  not  discharge  the  vendor's  equitable 
lien  on  the  estate.  And  it  seems  that  the  same  rule  must 
(*)prevail  although  the  estate  is  sold  for  an  annuity,  and 
a  covenant,  bond  or  note  is  taking  for  securing  the  pay- 
ment of  \x{i)' 

In  Elliot  V.  Edwards(A),  the  vendor  assigned  a  lease- 
hold estate  to  the  purchaser,  upon  payment  of  part  of  the 
purchase-money.  The  purchaser,  and  another  person  as 
his  surety, -covenanted  for  payment  of  the  residue  of  the 
purchase-money  ;  and  in  the  assignment  was  contained  a 
proviso,  that  the  estate  should  not  be  assigned  until  all 
the  money  was  duly  paid,  without  the  joint  consent  of  the 
vendor  and  the  surety.  Lord  Alvanley  was  of  opinion, 
that  the  vendor  had  an  equitable  lien,  and  that  till  the 
money  was  paid,  equity  would  not  compel  a  speciiic  per- 
formance of  any  agreement  by  the  assignee  for  sale  of 
the  estate.  But  if  a  third  person  advance  part  of  the  pur- 
chase-money to  the  vendor,  and  he  is  in  effect  made  a 
mortgagee  of  the  estate,  his  right  will  prevail  over  the 
vendor's  lien(/). 

In  Blackburn  v.  Gregson(7?i),  Lord  Rosslyn,  as  we  have 
seen,  said,  that  if  an  estate  is  sold,  and  no  part  of  the 
money  paid,  the  vendee  is  a  trustee  :  from  which  it  might 
perhaps  be  inferred,  that  a  vendor  has  always  an  equi- 
table lien  where  no  part  of  the  purchase-money  is  paid  : 
but  this  cannot  be  considered  as  a  general  rule ;  it  being 

wards  reheard  by  Lord  Chancellor  Eldon,  with  the  assistance  of  two 
Judges,  but  judgment  was  not  given. 

(i)  See  Tardiffe  v.  Scrughan,  1  Bro.  C.  C.  423,  cited  ;  but  see 
Mackreth  r.  Symmons,  15  Ves.  jun.  329,  which,  however,  was  a  very 
particular  case  ;  and  see  Clarke  v.  Royle,  sup.  p.  58. 

(/.•)   3  Bos.  &  Pull.  181. 

(/)  Wood  V.  Pollard,  9  Price,  544. 

(m)   1  Bro.  C.  C.  424. 

(*66) 


PURCHASE  MONEY  UNPAID. 


73 


clear,  tliat  a  vendor  uiaj  depart  with  his  lien,  although 
no  part  of  the  purchase-money  be  paid.  Indeed  the  same 
rules  seem  to  prevail  on  this  subject,  whether  the  whole 
or  only  part  of  the  purchase-money  remains  unpaid. 

Wliere  a  security  by  bond  or  note  is  given  for  the  pur- 
chase money,  and  it  is  intended  that  the  vendor  shall 
(*)not  have  a  lien  on  the  estate  for  the  money,  a  declara- 
tion to  that  effect  should  be  inserted  in  the  conveyance  ; 
which  would  effectually  prevent  equity  from  raising  a  lien 
upon  the  presumed  intention  of  the  parties(294) 

(294)  In  Kaufielt  v.  Bower,  7  S.  &  R.  64,  it  was  decided  that  where 
the  conveyance  was  absolute  and  possession  delivered   according  to  the 
deed  ;  and  the  vendee  executed  his  bond  with  surety  for  the  purchase 
money,  there  was  no  lien  as  against  judgment  creditors  recovering  their 
judgments  subsequent  to  the  conveyance.      Gibson,  J.  in  delivering  the 
judgment   of  the  court  said,  the   doctrine  of  lien  has  never  been  en- 
couraged by  the  legislature ;   but  has  been  barely  tolerated,  in  particular 
cases  and  under  severe  restrictions.     Nor  can  I  conceive  how  it  ever 
came  to  be  considered  a  principle  of  general  equity  any  where,  that  a 
vendor,  who  has  divested  himself  of  every  particle  of  right  that  can 
pass  by  deed,  shall  nevertheless  have  an  available  interest  in  the  land. 
Duncan,  J.  observed,  that  "  the  doctrine  of  implied  lien  here  is  a  novel 
one,   lately  imported  ;  and   opposed   to   the  policy  of  our  government, 
which  is  to  leave  this  species  of  property,  altogether  free  to  alienation, 
unincumbered  with  secret  trusts,  or  concealed  liens.     The  case  of  Ir- 
vine  et  al.   V.  Campbell,  6  Binn.  118,  very   properly  decided   that  the 
vendor  had  a  lien  for  the  purchase  money  ;  for  there  the  instrument  was 
denominated   an  article  of  agreement,  and  contained  a  covenant,  that 
each  party  should  give  to  the  other,  any  further  instrument  of  writing 
agreeable   to  law,  which  should  be  necessary  for  the  security  of  either. 
It  appeared  on  the  face  of  the  agreement  that  the  money  was  not  due 
until  after  the  judgment  and  sale  to  Irvine.     And  in  Calhoun  v.  Snyder, 
6  Binn.  167,  Yeates,  J.  states,  that  if  the  rule  should  be  adopted   here, 
that  judgments   bound  after  purchased  lands,  the  situation  of  a  buyer 
and  seller  would  be  most  perilous.     In  this  case  the  bond  given   by 
Bower  was  not  what  in  the  French  law  is  called  a  priviledged  obligation, 
for  which  he  had  a  lien,  on   the  property  sold,  to  be  paid  in  preference 
to  other  creditors ;  it  was  without  lien,  agreement,  or  covenant  binding 
the  land,  running  with  it ;  the  personal  security  of  the  obligor.     Such 
likewise  is  the  settled  principle  in  South  Carolina,  ex  parte  Wragg,  2 
Dess.  Ch.  R.  509.     Cases  of  fraud  are  exceptions  to  the  rule. 
VOL.  II.  10  (*67) 


74 


OF  THE  VENDOR'S  LIEN  FOR 


II.  It  must  be  remarked,  that  although  equity  raises 
this  lien  in  favor  of  a  vendor,  yet  it  is  not  extended  to 
third  persons  ;  that  is,  where  the  vendor  is  satisfied  out  of 
the  personal  estate  of  the  purchaser,  in  exclusion  of  a 
third  person,  that  person  cannot  resort  to  the  equitable 
lien  of  the  vendor  on  the  estate  ;  or,  in  other  words,  can- 
not require  the  purchased  estate  and  the  personal  estate 
to  be  marshalled. 

Thus,  in  the  case  of  Coppin  v.  Coppin(w),  a  younger 
brother  purchased  an  estate  of  his  elder  brother,  but  part 
of  the  purchase-money  was  not  paid.  The  purchaser 
made  his  will,  charging  his  estate  with  great  legacies  ; 
but  the  will  was  attested  by  only  two  witnesses;  after- 
wards the  purchaser  died,  leaving  his  brother,  the  vendor, 
his  heir  and  executor(295)  ;  and  it  was  holden  by  Lord 
Chancellor  King,  that  he  had  an  equitable  lien  on  the 
land  ;  that  he  was  entitled  to  retain  the  purchase-money 
out  of  the  assets ;  and  that  the  legatees  could  not  stand 
in  his  place  with  respect  to  the  equitable  lien. 

There  is  an  important  case  on  this  subject,  which  de- 
mands particular  attention.  The  case  to  which  I  allude 
is  Pollexfen  v.  Moore(o).  It  appeared  that  Thomas 
Moore  purchased  an  estate  from  Pollexfen,  and  had  not 
paid  all  the  purchase-money  ;  he  devised  the  estate  to 
Kemp,  and,  subject  to  some  legacies,  made  Kemp  his 
residuary  legatee  and  executor.  Kemp  wasted  the  per- 
sonal estate  and  died  ;  whereupon  the  purchased  estate 
(*)descended  to  Boyle  Kemp,  his  son  and  heir  at  law. 
Pollexfen  filed  his  bill  for  payment  of  the  remainder  of 
the  purchase-money.     Mrs.  Moore,  a  legatee  in  Thomas 

(»)   Coppin  V.  Coppin,  Sel.  Cha.  Ca.  28;  2  P.  Wms.  291. 
(o)  2  Atk.  272. 

(295)  "The  death  of  the  vendee  does  not  alter  the  claim ;" /)«• 
KENT,  Chancellor.  Garson  v.  Green,  1  Johns.  Ch.  Rep.  309.  See 
Trustees  of  the  University  v.  Gilmour,  2  Hayw.  129. 

(*68) 


PURCHASE  MONEY  UNPAID.  J^ 

Moore's  will,  brought  a  cross-bill,  praying  that  if  the  pur- 
chase-money should  be  paid  out  of  the  personal  estate, 
she  might  stand  in  the  purchaser's  place  as  to  his  lien  on 
the  land.  Lord  Hardwicke  admitted  that  Pollexfen  had  a 
lien  on  the  estate  for  the  remainder  of  the  purchase- 
money.  But  he  said,  that  this  equity  would  not  extend 
to  a  third  person,  but  was  confined  to  the  vendor  and 
vendee  only  ;  and  if  the  vendor  should  exhaust  the  per- 
sonal assets  of  Moore  and  Kemp,  the  defendant  would 
not  be  entitled  to  stand  in  his  place,  and  to  come  upon 
the  purchased  estate  in  the  possession  of  Kemp's  heir. 
But  then  the  heir  should  not  avail  himself  of  the  injus- 
tice of  his  father,  who  had  wasted  the  assets  of  Moore, 
which  should  have  been  applied  in  paying  the  defen- 
dant's legacy.  Therefore,  Lord  Hardwicke  added,  that 
the  estate  which  had  descended  from  Kemp,  the  executor 
of  Moore,  upon  Boyle  Kemp,  came  to  him  liable  to  the 
same  equity  as  it  would  have  been  against  the  father, 
who  had  misapplied  the  personal  estate  ;  and  in  order  to 
relieve  Mrs.  Moore,  he  would  direct  Pollexfen  to  take 
his  satisfaction  upon  the  purchased  estate,  because  he 
had  an  equitable  lien  both  upon  the  real  and  personal 
estate ;  and  would  leave  this  last  fund  open,  that  Mrs. 
Moore,  who  could  at  most  be  considered  only  as  a  sim- 
ple-contract creditor,  might  have  a  chance  of  being  paid 
out  of  the  personal  assets. 

The  decree  was  general,  that  the  residue  of  the  pur- 
chase-money and  interest  should  in  x\\e  first  place  be  paid 
out  of  the  personal  estate  of  the  said  Thomas  Moore  ;  but 
that  in  case  it  should  appear  that  Moore  did  not  leave 
assets  to  pay  what  should  be  so  due  for  the  residue  of 
the  purchase-money,  and  all  his  other  debts,  legacies  and 
(^]funeral  expences ;  or  if  the  personal  estate  of  Moore 
was  not  then  sufficient,  by  reason  that  the  assets  of  Kemp 
were  not  sufficient  to  answer  such  part  thereof  as  came 

(*69) 


76 


OF  THE  VENDOR'S  LIEN  FOR 


to  his  hands,  then  such  deiiciencj,  "  so  far  as  the  person- 
al estate  of  the  said  Thomas  Moore  shall  be  applied  in 
payment  of  the  said  purchase -money (I),''''  should  be  made 
good  out  of  the  purchased  estate,  and  a  competent  part 
thereof  was  decreed  to  be  sold  accordingly. 

Now  in  this  case  Lord  Hardwicke,  in  giving  judgment, 
clearly  agreed  with  the  decision  in  Coppin  v.  Coppin, 
that  this  equity  did  not  extend  to  a  third  person.  Accord- 
ing to  the  judgment,  his  Lordship  deviated  from  that  rule 
in  the  case  before  him,  on  the  ground  of  fraud.  But 
Lord  Hardwicke's  decree  cannot  be  satisfactorily  account- 
ed for  on  this  narrow  ground.  The  decree  was,  that  if 
Thomas  Moore  (the  original  purchaser)  did  not  leave 
assets  to  pay  the  residue  of  the  purchase-money,  and  all 
his  debts,  funeral  expenses,  and  legacies,  then  the  pur- 
chased estate  and  the  personal  estate  should  be  marshall- 
ed, so  as  to  let  in  the  simple-contract  creditors  and  lega- 
tees. This  could  not  be  on  account  of  the  fraud  in  Kemp, 
the  devisee  and  executor. 

It  appears  by  the  Registrar's  book,  that  Pollexfen  had 
not  delivered  the  title-deeds  and  conveyance  of  the  estate 
to  the  purchaser,  but  had  by  agreement  kept  them  in  his 
own  custody  as  a  security  for  the  purchase-money  unpaid  ; 
(*)and  he  strongly  insisted  by  his  bill,  that  he  never  in- 
tended the  deeds  to  have  operation  till  all  the  money 

(I)  The  decree  has  generally  been  considered  at  variance  with  the 
judgment.  In  the  first  edition  of  this  work,  the  author  stated,  that  he 
could  not  see  the  principle  upon  which  the  decree  was  made,  if  it  were 
correctly  stated,  that  if  the  purchaser  did  not  leave  assets  to  pay  the 
purchase-money,  and  all  his  debts,  funeral  expenses,  and  legacies,  the 
deficiency  was  to  be  made  good  out  of  the  purchased  estate.  See  3. 
Atk.  273,  n.  3,  last  editon.  Upon  searching  the  Registrar's  book,  it  ap- 
pears that  the  decree  was  qualified  as  stated  in  the  text ;  and  this  emen- 
dation, with  the  observations  in  the  text,  will,  it  is  hoped,  conduce  to  a 
right  understanding  of  this  case.     See  Reg.  Lib.  B.  1745,  fol.  283. 

(*70) 


PURCHASE  MONEY  UNPAID, 


77 


was  paid(p).  And  this,  it  is  apprehended,  must  have 
been  the  ground  on  which  the  decree  was  pronounced. 
The  seller  had  an  equitable  mortgage  on  the  estate,  and 
the  case  therefore  came  within  the  general  rule,  as  to 
marshalling(^). 

Thus  explained,  the  case  of  Pollexfen  v.  Moore  does 
not  in  the  least  clash  with  Coppin  v.  Coppin,  but  appears 
to  establish  an  important  distinction  on  this  subject,  viz. 
that  where  the  purchaser  has  an  equitable  mortgage  on 
the  estate,  or  in  case  of  fraud,  the  purchased  estate  and 
the  personal  estate  may  be  marshalled  in  favor  of  simple- 
contract  creditors  and  legatees. 

The  general  question  under  discussion  arose  in  a  case 
before  Lord  Eldon,  but  it  was  not  necessary  to  decide  it. 
Pollexfen  v.  Moore,  as  reported,  was  the  only  case  cited. 
The  Lord  Chancellor  assimilated  the  lien  to  a  charge,  and 
said,  that  the  cases  of  marshalling  seem  to  have  gone  this 
length  :  that,  where  there  is  a  charge  upon  an  estate  de- 
scended, a  legatee  shall  stand  in  the  place  of  the  person 
having  that  charge,  resorting  to  the  personal  estate.  His 
Lordship,  however,  gave  no  opinion  upon  the  point, 
although  it  is  clear  that  the  inclination  of  his  opinion  was 
in  favor  of  the  legatee  under  the  general  rule(r).  In  a 
still  later  case  the  very  point  came  before  Sir  Wm.  Grant, 
Master  of  the  Rolls,  and  called  for  a  decision (5).  The 
only  case  cited  was  Pollexfen  v.  Moore,  as  reported 
(*)in  Atkyns.     His  Honor  said,  that  it  was  a  very  obscure 

ip)  Reg.  Lib.  B.  1745,  fol.  283. 

(5)   Lutkins  v.  Leigh,  For.  53  ;  Aldrich  v.  Cooper,  8  Ves.  jun.  397. 
In  my  copy   of  Forrester,  Holdsvvorth  v.  Holdsworth,  Hil.   23  Geo. 
•  in.    on  appeal  from  the  Rolls,  is  referred  to ;  and    see  O'Neal  «. 
Mead,  1  P.  Wms.  693,  and  the  cases  in  the  note. 

(r)   See  Austen  v.  Halsey,  6  Ves.  jun.  475  ;  and  see  Cox's  n.  (1 )  to 
2  P.  Wms.  295. 

(«)  Trimmer  v.  Bayne,  9  Ves.  jun.  209  ;  and  see  Headley  v.  Road- 
head,  Coop.  50. 

k(*71) 


Y3  OF  THE  VENDOR'S  LIEN  FOR  '  11 

report ;  and  it  had  perplexed  him  very  much  formerly. 
The  decision  was  against  that  diction  of  Lord  Hardwicke. 
This  could  not  be  distinguished  from  the  common  case 
of  marshalling  ;  that  a, person  having  resort  to  two  funds 
shall  not  by  his  choice  disappoint  another,  having  one 
only :  and  a  decree  was  pronounced  accordingly. 

The  reader  will  observe,  that  the  case  of  Coppin  v. 
Coppin  was  not  cited  in  either  of  the  foregoing  cases ; 
and  should  the  observations  which  have  been  made  on 
Pollexfen  v.  Moore  be  thought  correct,  it  would  seem  that 
Lord  Hardwicke's  decision  was  not  in  opposition  to  his 
dictum  in  the  same  case,  expressive  of  the  rule  established 
by  Lord  Chancellor  King.  Perhaps  the  common  case  of 
marshalling  may  be  thought  not  to  apply  to  the  point  in 
question,  when  it  is  considered  that  the  equitable  lien 
was  originally  raised  bjj  the  construction  of  equity  in 
favor  of  the  vendor  only,  and  not  in  favor  of  third 
persons.  It  seems  to  have  been  thought  in  Coppin  v. 
Coppin,  and  apparently  with  some  reason,  that  extending 
the  vendor's  lien  to  third  persons  would  be  breaking  in 
upon  the  statute  of  frauds.  The  general  rule  as  to  mar- 
shalling applies  to  cases  where  the  person  resorting  to 
the  personal  estate  has  an  actual  charge  or  lien  on  the 
real  estate  :  but  in  this  case,  if  equity  first  deems  the 
purchaser  a  trustee  for  the  vendor  as  to  so  much  of  the 
estate  as  will  satisfy  the  purchase-money  unpaid,  and  then 
permits  a  disappointed  legatee  to  stand  in  the  place  of  the 
vendor,  it  is  creating  a  charge  on  the  land  in  direct  oppo- 
sition to  the  statute  of  frauds.  On  sale  of  the  estate,  the 
purchase-money  becomes  a  debt  payable  out  of  the  pur- 
chaser's personal  estate;  and  the  equitable  lien  ought,  it 
is  conceived,  to  be  extended  to  so  much  only  of  the  pur- 
chased estate  as  the  personal  estate  is  insufficient  to 
answer.  The  vendor  has  not  an  original  charge  on  the 
(*)estate,  but  only  an  equity  to  resort   to  it,  in  case  the 

(*72) 


PURCHASE  MONEY  UNPAID. 


79 


personal  estate  prove  deficient.  In  this  view  of  the  case 
an  independent  substantive  charge  on  the  land  is,  in  fact, 
created  by  equity  in  favor  of  a  legatee,  although,  if  the 
legacy  was  actually  imposed  on  the  estate  by  a  will  not 
duly  executed  according  to  the  statute  of  frauds,  the 
Court  is  bound  to  say,  that  the  will  cannot  be  read  as  to 
the  charge. 

It  is  with  great  deference  that  these  observations  are 
submitted  to  the  reader,  after  the  high  opinions  which 
have  been  given  upon  this  point ;  but  as  the  case  of 
Coppin  V.  Coppin  was  not  cited  in  the  recent  cases,  and 
the  effect  of  a  decision  over-ruling  that  of  Lord  Chancellor 
King,  does  not  appear  to  have  presented  itself  to  the 
mind  of  the  Court,  it  still  seems  open  to  contend,  that 
the  equity  under  consideration  cannot  be  extended  to 
a  third  person,  unless  by  reason  of  a  fraud,  or  on  the 
ground  of  the  vendor  having  an  equitable  mortgage  on  the 
estate. 

Since  these  observations  were  written.  Lord  Eldon,  in 
deciding  the  general  question  of  lien,  observed  that  he 
had  some  doubt  upon  another  point,  whether  the  Court 
will  in  case  of  the  death  of  the  vendee  marshal  the  assets, 
so  as  to  throw  the  line  on  the  purchased  estate.  It  has 
been  often  said,  and  the  case  of  Coppin  v.  Coppin  stated 
as  an  authority,  that  a  Court  will  not  do  that.  The  Lord 
Chancellor  in  his  judgment  takes  no  notice  of  that  point. 
In  that  case  the  heir  happened  to  be  the  heir  of  the 
vendee,  so  that  the  estate  was  at  home,  and  it  was  held 
that  being  also  the  executor,  he  was  entitled  to  retain  the 
•purchase-money  out  of  the  personal  assets.  That  deci- 
sion requires  a  good  deal  of  consideration.  If  the  estate 
had  been  in  a  third  person,  the  general  doctrine  as  to  a 
person  having  two  funds  to  resort  to,  might  be  thought 
to  have  an  immediate  application,  and  the  express  terms 
(*)of  the  decree  in  Pollexfen  v.  Moore  might  be  found  very 

(*73) 


80 


OF  THE  VENDORS  LIEN  FOR 


inconsistent  with  it(t).  On  a  subsequent  occasion,  Lord 
Eldon  observed  (in  allusion  to  Lord  Hardwicke's  obser- 
vation in  Pollexfen  v.  Moore,  before  noticed),  that  if  the 
meaning  was  that  he  (Lord  H.)  would  follow  the  case 
of  Coppin  V.  Coppin,  and  that  if  the  vendor  exhausted 
the  personal  assets,  the  legatee  of  the  purchaser  should 
not  come  upon  the  estate,  there  is  great  difficulty  in  ap- 
plying the  principle,  as  it  would  then  be  in  the  power  of 
the  vendor  to  administer  the  assets  as  he  pleases :  having 
a  lien  upon  the  real  estate  to  exhaust  the  personal  assets^ 
and  disappoint  all  the  creditors  ;  w  ho,  if  he  had  resorted 
to  his  lien,  would  have  been  satisfied,  and  in  that 
respect,  with  reference  to  the  principle,  the  case  is 
anomalous(w). 

In  the  late  case  of  Selby  v.  Selby,  the  Master  of 
the  Rolls  decided  that  the  assets  should  be  marshalled 
against  the  devisee  in  favor  of  simple-contract  credi- 
tors(a:)(296). 

{I)   15  Ves.  jun.  338,  339. 
(m)    15  Ves.  jun.  345. 
(x)  4  Russ.  336. 

(296)  Pecuniary  Legacies  are  not  a  charge  upon  the  lands,  as  against 
a  residuary  devisee,  unless  such  an  intention  be  clearly  expressed  by 
the  testator. 

As,  in  Gridley  <$-  ux.  v.  Jlndretvs  <$'  al.  8  Conn.  R.  1,  where  the  tes- 
tator after  several  legacies  to  his  daughters  to  be  paid  in  one  year  after 
his  death,  gave  the  residue  of  his  estate  to  his  son.  At  the  time  of 
making  his  will  he  had  ample  personal  estate  to  pay  all  debts  and 
legacies ;  but  when  he  died,  his  personal  effects  were  only  sufficient 
to  pay  the  debts,  &c.  without  the  legacies.  The  testator,  however, 
had  purchased  $4,000  worth  of  real  estate,  which  he  paid  for  out  of 
the  personal  estate  ;  and  this  between  the  making  of  the  will  and  his 
death  ;  but  a  share  of  this  latter  estate  descended  to  the  plaintiff,  as 
heir  at  law.  And  the  question  in  the  case  was,  whether  the  plain- 
tiff as  legatee  was  entitled  to  payment  of  the  legacy  out  of  the  real  es- 
tate ;  and  held,  that  the  legacies  were  not  a  charge  on  the  real  estate. 
Bissely  J.     The  intent  of  the  testator  is  to  prevail ;  but  no  rule  is  better 

(*73) 


PURCHASE  MONEY  UNPAID.  Ol 

III.  The  observation  of  Lord  Hardwicke  before  noticed, 
that  this  equity  would  not  extend  to  a  third  person,  but 
was  confined  to  the  vendor  and  vendee  only,  is  frequently 
adduced  to  prove,  that  the  lien  does  not  exist  when  the 
estate  passes  into  the  hands  of  a  third  person  ;  but  by  the 
latter  part  of  the  same  passage(y),  it  clearly  appears,  that 
this  was  not  Lord  Hardwicke's  meaning  ;  and  in  Walker 
V.  Preswick(2)  Lord  Hardwicke  said,  that  this  lien  pre- 
vailed against  the  purchaser,  his  heir,  or  any  claiming 
under  him,  with  notice  of  this  equitable  title ;  which 
evinces  his  meaning  to  be,  that  the  purchased  estate,  and 
the  personal  estate  of  the  purchaser,  could  not  be  mar- 
shalled in  favor  of  a    third   person,  although,  as  we  have 

(y)    Vide  supra,  p.  68. 
(2)  2  Ves.  622. 

established  than  that  pecuniary  legacies  are  never  to  be  a  charge  on 
real  estate,  unless  such  intention  be  clearly  expressed  by  the  testator. 
In  Swift  V.  Edson,  5  ib.  532,  the  testator  gave  pecuniary  to  a  large 
amount,  and  expressly  directed  the  legacies  to  be  paid ;  and  there  was 
a  devise  over  of  the  residue  of  her  estate.  When  the  will  was  made 
she  had  sutficient  personal  estate  to  pay  all  debts  and  legacies  ;  but  by 
the  foreclosure  of  mortgages  in  her  life  time  the  personal  was  converted 
into  real  estate  ;  and  the  prayer  was  that  the  real  estate  obtained  by  such 
foreclosures  might  be  applied  to  the  payment  of  the  legacies.  The 
C.  J.  there  recognised  the  distinction  between  a  charge  lipon  the  realty, 
whether  it  be  for  the  payment  of  the  debts  and  legacies.  In  respect  to 
the  latter,  he  said,  '  there  must  be  a  clear,  nianifest  intention  that  the 
heir  or  devisee  shall  take  subject  to  the  legacies  ;' — and  the  bill  with  re- 
spect to  that  relief  was  dismissed. 

So,  in  Tole  ^-  tix.  v.  Itardij,  6  Cowen,  333,  where  the  words  were  : — 
"  I  give  to  W.  H.  (defendant)  all  my  estate  that  I  now  live  on,  which 
shall  be  his  forever  ;  and  he  is  to  pay  Mrs.  Tole  $100.  Defendant  being 
one  of  the  executors  said  he  would  pay  (he  legacies,  if  the  widow  would 
release  her  dower,  &c.,  which  she  did.  The  action  was  assumpsit  for 
the  legacy  ;  and  the  question  was  whether  the  legacy  was  a  charge  on 
the  land  ?  The  court  held,  that  it  did  not  clearly  appear  that  this  legacy 
was  to  be  a  specific  charge  on  the  land  to  the  exclusion  of  the  personal 
property  from  coming  in  aid  of  the  real. 

VOL.  n.  11 


09  OF  THE  VENDOR'S  LIEN  FOR 

(*)seen,  he  called  it  in  Pollexfen  v.  Moore,  by  reason  of 
the  equitable  mortgage. 

It  appears  then,  that  this  equitable  lien  prevails  against 
the  purchaser  and  his  heir,  and  all  persons  claiming 
under  him  with  notice,  although  for  valuable  considera- 
tion(«)(297). 

But  it  of  course  would  not  prevail  against  a  bona  fide 
purchaser  without  notice  :  and  the  mere  deduction  of  the 
title  to  the  estate  from  the  first  vendor  by  recital,  will  not 
be  sufficient  to  affect  him,  for  that  does  not  show  it  was 
not  paid  for(6)(298). 

Persons  coming  in  under  the  purchaser  by  act  of  law, 
as  assignees  of  a  bankrupt(c),  are  bound  by  an  equitable 
lien,  although  they  had  no  notice  of  its  existence  ;  be- 
cause, as  Sir  William  Grant  observed  on  another  point, 
the  assignment  from  the  commissioners,  like  any  other 
assignment  by  operation  of  law,  passes  the  rights  of  a 
bankrupt  precisely  in  the  same  plight  and  condition  as 
he  possessed  them.  Even  where  (as  in  this  instance)  a 
complete  legal  title  vests  in  them,  and  there  is  notice  of 
an  equity  affecting  it,  they  take,  subject  to  whatever 
equity  the  bankrupt  was  liable  to{d). 

In  some  cases  by  force  of  the  seller's  lien,  the  Court 
can  at  once  sell  the  estate  and  pay  the  purchase-money 
to  the  seller(e). 

But  where  a  trustee  for  infants,  to  sell  the  lease  of  a 

(a)  Hearle  v.  Botelers,  Gary's  Cha.  Rep.  25  ;  Walker  v.  Preswick, 
2  Ves.  622  ;  Gibbons  v.  Baddall,  2  Eq.  Ca.  Abr.  682,  n.  (b)  to  (D) ; 
Elliot  V.  Edwards,  3  Bos.  &  Pull.  181  ;  Mackreth  v.  Symmons,  15 
Ves.  jun.  329. 

(6)   See  1  Bro.  C.  C.  302. 

(c)  Blackburne  v.  Gregson,  1  Bro.  C.  C.  420 ;  Bowles  v.  Rogers,  6 
Ves.  jun.  95,  n.  (a)  ;  Ex  parte  Hanson,  12  Ves.  jun.  346. 

(d)  See  9  Ves.  jun.  100  ;  2  Ves.  &  Bea.  309. 

(e)  Supra,  Vol.  1,  p.  439. 

(297)  See  Irvine  v.  CampbeU,  6  Binn.  118.  Cole  v.  Scott,  2  Wash. 
142.     Stouffer^s  Les.  v.  Coleman,  1  Yeates,  393. 

(298)  See  Irvine  v.  Campbell,  6  Binn.  118. 
(*7-l) 


PURCHASE  MONEY  UNPAID.  oo 

brevvhouse,  plant  and  fixtures,  contracted  to  sell  them  and 
let  the  purchaser  into  possession,  and  upon  a  bill  filed  by 
(*)the  trustee  there  was  a  decree  for  a  specific  perform- 
ance, but  the  purchaser  became  bankrupt  before  the  mon- 
ey was  paid,  the  Vice-Chancellor  held  that  there  was  no 
lien  against  the  plant,  which  fell  within  the  provision  of 
the  21  Jac.  1.  c.  19(f). 

And  creditors  claiming  under  a  conveyance  from  the 
purchaser,  are  bound  in  like  manner  as  assignees(g'),  be- 
cause they  stand  in  the  same  situation  as  creditors  under 
a  commission. 

In  Nairn  v.  Prowse(/t)  the  question  arose,  whether  the 
lien  of  which  we  are  now  treating,  should  prevail  against 
an  equitable  mortgage,  by  deposit  of  title-deeds  ;  but  the 
case  went  ofi"  on  another  ground,  and  the  point  was  not 
decided.  In  Stanhope  v.  Earl  Verney(/),  Lord  North- 
ington  held,  that  a  declaration  of  trust  of  a  term  in  favor 
of  a  person,  was  tantamount  to  an  actual  assignment ; 
unless  a  subsequent  incumbrancer,  bona  fide,  and  without 
notice,  procured  an  assignment ;  and  that  the  custody  of 
the  deeds  respecting  the  term,  with  a  declaration  of  the 
trust  of  it  in  favor  of  a  second  incumbrancer,  was  equi- 
valent to  an  actual  assignment  of  it ;  and  therefore  gave 
him  an  advantage  over  the  first  incumbrancer,  which 
equity  would  not  take  from  him(299). 

Now  it  must  at  one  view  be  seen  how  strong  the  ana- 
logy is  between  the  point  in  question  and  this  case.  The 
only  difference  between  them  appears  to  be,  that  in  the 
case  before  Lord  Northington,  both  the   trusts  were  de- 

(/)  Ex  parte  Dale,  1  Buck,  365. 

(g-)  Fawell  V.  Heelis,  Ambl.  724  ;  and  see  1  Bro.  C.  C.  302. 
(Ji)   6  Ves.  jun.  752  ;  see  2  Ves.  &  Bea.  149. 
(t)  Butler's  note,  (1)  to  Co.  Litt.  290  b,  Ch.  July  27,  1761  ;  see  and 
consider  Frere  v.  Moore,  8  Price,  476. 

(299)   See  Broim  v.  Gilman,  4  Wheat.  290. 

(*76) 


84 


OF  THE  VENDOR'S  LIEN  FOR 


clared  by  the  parties  ;  whereas  in  the  case  under  consi- 
deration, the  trust  or  lien  is  raised  by  equity,  and  not  by 
express  declaration,  and  the  trust  or  equitable  mortgage 
(*)is  generally  created  by  the  declaration  of  the  parties ; 
which  circumstance,  if  it  turn  the  scale  either  way,  is 
certainly  in  favor  of  the  mortgagee  :  so  that,  upon  the 
authority  of  this  case,  we  may  perhaps  venture  to  say, 
that  an  equitable  mortgage,  by  deposit  of  deeds  to  a 
person,  bona  Jide,  and  without  notice,  will  give  him  a 
preferable  equity,  and  will  overreach  the  vendor's  equi- 
table lien  on  the  estate  for  any  part  of  the  purchase- 
money  (/c). 

A  deposit  of  title-deeds  by  a  simple-contract  debtor  of 
the  Crown,  for  securing  part  of  the  purchase-money  for 
another  estate,  binds  the  Crown  as  an  equitable  mortgage, 
although  the  purchaser  also  give  his  bond  to  the  seller 
for  the  money (/). 

Before  closing  this  subject  it  may  be  observed,  that  if 
a  purchaser  deposit  the  deeds  with  a  third  person,  as  a 
collateral  security  for  part  of  the  purchase-money,  the 
seller,  although  he  obtain  possession  of  the  conveyance 
to  him  from  the  depositary,  and  pledge  it  to  persons  who 
advance  money  upon  it  bona  Jide,  cannot  give  them  a 
lien  beyond  the  amount  of  the  purchase-money  actually 
unpaid(m)(300), 

(k)  In  Mackreth  v.  Symmons,  15  Ves.  jun.  329,  there  was  no  deposit 
of  the  deeds. 

{1}  Casberd  v.  Ward,  6  Price,  411  ;  Fector  v.  Philpott,  12  Price,  197. 

(w)  Hooper  v.  Ramsbottom,  4  Camp.  Ca.  121  ;  6  Taunt.  12  ;  Har- 
rington V.  Price,  3  Barn.  &  Adolph.  170. 

(300)  "  By  the  English  laws,  the  real  estate  can  never  be  charged 
for  the  debts  of  the  testator,  nor  in  any  manner  taken  from  the  heir,  un- 
less the  will  be  attested  by  three  or  more  witnesses.  The  provisions  of 
our  statute  are  substantially  the  same.  The  devise  of  lands,  mention- 
ed in  our  statute  of  wills,  must  include  all  charges  on  lands  by  last  will. 
By  the  statutes  regulating  intestate  estates,  all  the  lands  of  the  deceas- 

(*76) 


PURCHASE  MONEY  UNPAID. 


85 


ed,  which  have  not  been  legally  devised,  descend  to  his  heirs.  If  there- 
fore a  charge  for  the  payment  of  legacies  is  not  virtually  a  devise  of  the 
land,  it  will  have  no  effect  in  any  case  against  the  heir.  It  is  true  that 
the  statute  for  the  settlement  of  the  estates  of  persons  deceased,  au- 
thorises a  sale  of  the  real  estate,  when  the  goods  and  chattels  are  not 
sufficient,  to  pay  the  just  debts  of  the  deceased,  and  the  legacies  be- 
queathed in  his  last  will  and  testament.  But  the  words  of  this  statute 
may  be  fully  satisfied,  if  its  provisions  are  confined  to  such  legacies  as 
were  by  law  payable  out  of  the  real  estate.  This  is  the  case  with  all 
legacies  given  in  a  will,  which  is  executed  in  the  manner  prescribed 
for  devising  real  estate  :  and  this  being  the  case  which  would  most 
commonly  occur,  we  may  presume  it  to  have  been  in  the  view  of  the 
legislature,  in  passing  the  last  mentioned  statute.  By  the  statute  of 
wills,  no  instrument  can  be  approved  as  a  testament  of  personal  estate 
only,  if  it  purports  to  dispose  also  of  real  estate.  The  statute  for  the 
settlement  of  the  estates  of  persons  deceased  provides  that  the  real  es- 
tate of  every  testator  or  intestate  shall  be  liable  to  be  taken  in  execution 
by  the  creditors  of  the  deceased.  But  we  find  no  such  provision  in 
favor  of  legatees ;  although  the  latter  are  allowed  to  sue  for  their 
legacies,  by  an  action  at  common  law  against  the  executor.  Per  Jack- 
son, J.  in  Winslow  et  al.  executors,  &c.,  14  Mass.  422. 

In  the  above  case,  the  question  arose  upon  the  approval  of  a  codicil 
attested  by  two  witnesses  only,  when  it  was  admitted  that  the  testatrix 
had  some  real  estate,  which  would  pass  by  the  residuary  clause  in  the 
will.  It  was  disallowed  in  the  probate  court,  for  the  reason  that  the 
codicil  not  being  signed  by  three  witnesses,  it  could  not  revoke  nor 
alter  that  devise  in  the  will.  But  the  court  on  appeal  allowed  and  ap- 
proved the  codicil  ;  but  added  '  if  it  should  hereafter  appear,  that  the 
legacies  given  by  the  codicil  cannot  be  paid,  without  disposing  of  some 
part  of  the  real  estate,  which  had  before  been  devised  by  the  will  ;  the 
question,  whether  the  real  estate  can  be  taken  for  the  purpose,  will  come 
more  properly  before  the  court.  We  give  no  opinion  at  present,  whether 
the  will  in  this  case  created  a  virtual  charge  on  the  land,  for  the  lega- 
cies therein  bequeathed  ;  and  whether  the  legacies  in  the  codicil  come 
in  under  the  same  charge,  according  to  the  principle  laid  down  in  the 
case  of  Windham  v.  Chetwynd,  1  Bur.  423  :  1  P.  Wms.  421,  Masters 
r.  Masters. 

'  At  common  law  the  lands  of  a  testator  are  not  assets  in  the  hands 
of  the  heirs,  for  the  payment  of  any  but  specialty  debts,  where  the  heir 
is  expressly  bound  by  the  contract.  And  his  lands  are  not  bound  for 
the  payment  of  any  of  his  debts  in  the  hands  of  a  devisee,  unless 
charged  by  the  testator,  either  generally  or  specially,  in  his  will.     Since 


8(5  OF  TifE  VENDOR'S  LIEN  FOR 

the  St.  of  3  &  4  W.  &  M.  c.  14.  was  passed,  by  which  the  lands  in  the 
hands  of  a  devisee  are  made  assets  for  the  payment  of  debts  due  on  spe- 
cialties, all  the  lands  of  the  testator,  whether  they  descend  or  are  devised, 
are  chargedby  law  with  the  payment  of  creditors  by  specialty ;  who  may 
also  resort  to  the  personal  estate.  But  creditors  by  simple  contract  can 
avail  themselves  only  of  the  personal  estate,  and  such  of  the  lands  as  are 
charged  in  the  will  with  the  payment  of  debts  ;  unless  when  they  take  the 
place  of  creditors  by  specialty,  who  have  been  paid  out  of  the  personal 
estate.  These  rights  of  the  creditors  remain  uncontrolled  by  any  pro- 
visions which  a  testator  can  make.  But  as  between  legatees  and  devi- 
sees who  claim  under  the  will,  and  the  heirs  who  can  take  only  what  the 
testator  has  not  given  away,  he  may  regulate  the  funds,  out  of  which  his 
debts  shall  be  paid  :  by  which  regulations  they  will  be  bound. 

'  In  this  commonwealth  all  the  personal  estate  of  the  testator,  and 
all  the  real  estate,  of  which  he  died  seised,  whether  devised  or  not,  are 
assets  for  the  payment  of  all  his  debts,  whether  due  by  simple  contract 
or  by  specialty.  Also  by  the  st.  of  1783  c.  24,  s.  10,  all  estate  real  or 
persona],  undevised  in  any  will,  shall  be  distributed  as  if  it  were  intes- 
tate, and  the  executor  shall  administer  upon  it  as  such.'  Again,  '  it  is 
manifest  that  a  testator  cannot,  by  any  dispositions  in  his  will,  affect 
the  rights  of  creditors  : — but  he  may  bind,  by  his  disposition,  his  legatees, 
devisees  and  heirs.'  Again,  '  the  testator  cannot  charge  with  the  pay- 
ment of  his  debts  after  purchased  lands,  any  more  than  he  can  devise 
them."  Accordingly  in  Hays  &  al.  v.  Jackson  &  al.,  6  Mass.  149,  the 
court  ordered  the  executors  to  take  the  lands  which  were  not  specifical- 
ly devised,  and  then  such  as  descended  to  the  heirs  and  sell  the  same  for 
the  payment  of  the  debts  ;  for  when  the  testator,  or  the  law  has  appro- 
priated an  adequate  fund  to  pay  the  debts,  it  would  be  unreasonable  for 
the  court  to  let  that  fund  lie  by,  and  to  license  an  executor  to  sell  a  spe- 
cific devise. 

'  There  seems  to  be  no  reason  or  authority  for  holding  that  lands  spe- 
cifically devised  are  liable  to  be  sold  for  the  payment  of  specific  lega- 
cies. The  most  that  legatees  can  claim  is,  that  they  should  be  put  on 
an  equal  footing  with  the  devisees  :  and  that  the  latter,  in  case  of  a 
deficiency  of  assets,  should  be  held  to  contribute.'  Per  Wilde,  J.  9 
Pick.  661. 

Mr.  J.  Story  in  Gardner  v.  Gardner,  4  Mason,  215,  recognizes  the 
doctrine  laid  down  by  Lord  Eldon,  '  that  where  a  man,  by  deed  or  will, 
charges  or  orders  an  estate  to  be  sold  for  the  payments  of  debts  general- 
ly, and  then  makes  specific  dispositions,  the  purchaser  is  not  bound  to 
see  to  the  application  of  the  purchase  money.'  He  adds  '  I  agree  to 
the  doctrine,  in  cases  of  a  general  charge  of  debts,  that  the  purchaser 


PURCHASE  MONEY  UNPAID. 


87 


need  not  look  to  the  application,  if  he  has  bona  fide  paid  the  same. 
When  he  once  has  paid  in  good  faith  into  the  hands  of  the  devisee  he 
is  exonerated.  But  he  is  not  at  liberty  to  assist  in  its  misapplication  ; 
he  is  not  to  buy  the  trust  property  in  payment  of  antecedent  debts,  or  to 
aid  the  devisee  in  diverting  the  fund  from  its  proper  uses  ;  and  if  he 
does,  a  court  of  equity  will  fasten  on  the  estate  in  his  hands  the  original 
charge,  which  he  has  attempted  to  displace.  And  where  debts  are  pay- 
able out  of  an  estate,  they  are  a  charge  upon  the  estate.  Livingston  v. 
The  executors  of  Livingston,  3  Johns.  189  ;  Jackson  v.  Harris,  8 
Johns.  141  ;  Jackson  v.  Bull,  10  ib.  148  ;  and  Jackson  v.  Martin,  18 
ib.  31,  tend  to  confirm  this  principle. 


[  88] 


f)CH AFTER  XIII. 

OF  THE  CONSTRUCTION  OF  COVENANTS  FOR  TITLE 

SECTION  I. 

Where  they  run  with  the  land. 


In  a  preceding  chapter  we  have  seen  to  what  covenants 
a  purchaser  is  entitled(«)  ;  and  we  are  now  to  consider 
the  construction  of  covenants  entered  into  by  a  vendor. 

Covenants  for  title  are  termed  real  covenants,  and  pass 
to  the  assignees  of  the  land  by  the  common  law,  who 
may  maintain  actions  upon  them  against  the  vendor  and 
his  real  and  personal  representatives(6)(I)(301).     And  as 

(a)  Ch.  9. 

{h)  Middlemore  v.  Goodale,  1  Ro.  Abr.  521,  (K.)  pi.  6;  Cro.  Car. 
503.  505  ;  Sir  Wm.  Jones,  406  ;  Campbell  v.  Lewis,  3  Barn.  &  Aid. 
392  ;  Lewis  v.  Campbell,  8  Taunt.  715. 

(I)  A  respectable  writer  has  observed,  that  cestuis  que  use  are  gran- 
tees within  the  statute  32  Hen.  VIIL  c.  34;  and  are  therefore  entitled 
to  the  benefit  of  £ill  covenants  entered  into  by  persons  selling  lands,  for 
securing  the  title  of  such  lands,  4  Cruise's  Dig.  p.  80,  s.  44.  The  sta- 
tute of  Henry,  however,  appears  to  relate  only  to  covenants  which  are 
a  charge  upon  or  incident  to  reversions  ;  and  a  purchaser  of  a  reversion 

(301)  SeeM'Crady  v.  Brisbane,  1  Nott  &  M'Cord,  104.  Harri- 
son v.  Sampson,  2  Wash.  155.  Woodford's  heir  v.  Pendleton,  1  Hen. 
&  Munf.  303.  Capel  v.  Bull,  17  Mass.  Rep.  213.  Mitchell  v.  War- 
ner, 5  Conn.  Rep.  497. 

(*77) 


COVENANTS  FOR  TITLE.  oQ 

the  covenants  relate  to  the  land,  it  seems  that  an  assignee 
mav  maintain  an  action  on  the  covenants,  although  the 
(*)covenants  were  entered  into  with  the  original  grantee 
and  his  heirs  only(c)(302)  ;  and  the  right  of  action,  even 
for  a  breach  in  the  ancestor's  life-time,  will  descend  to  the 
heir,  and  not  to  the  executor,  where  no  actual  damage  was 
sustained   by  the  ancestor(r/)(303).     So  covenant  will  lie 

(c)  Co.  Litt.  884  b  ;  385  a  ;   Spencer's  case,  6  Rep.   16  ;  Bally  v. 
Wells,  3  Wils.  25  ;  Tatem  v.  Chaplin,  2  H.  Blackst.  133. 

(d)  Kingdon  v.  Nottle,   1    Mau.  &   Selvv.   355  ;  King  v.  Jones,  6 
Taunt.  418;   1   Marsh.  107;  4  Mau.  &  Selw.  188. 


is  under  this  act  clearly  entitled  to  the  benefit  of  covenants  entered  into 
by  a  lessee  with  the  vendor,  although  the  estate  is  vested  in  him  by  way 
of  use  under  the  statute  of  uses  ;  because  this  last  statute  puts  him  in 
the  place  of  his  feoffee.  Lee  v.  Arnold,  4  Leo.  27  ;  S.  C.  Mo.  97, 
nom.  Appowel  t".  Monnoux ;  Roll  v.  Osborne,  Mo.  859.  Where  an 
estate  is  upon  a  purchase  conveyed  to  A.  to  uses,  the  covenants  for 
title  ought  to  be  entered  info  with  ..2.  The  statute  of  uses  will  of  course 
turn  the  uses  into  possessions,  and  the  cesiuis  que  inist  will  then  be 
deemed  assignees,  and  may  take  advantage  of  the  covenants  by  force 
of  the  common  law,  just  as  if  the  statute  of  uses  had  not  been  passed, 
and  the  estate  had  been  conveyed  to  them  at  once  by  A.  This,  there- 
fore, appears  to  be  wholly  independent  of  the  statute  of  32  Hen.  VIIL 

(302)  See  Litnow  v.  Ellis,  6  Mass.  Rep.  331. 

(303)  See  contra,  Hamillon  v.  Wilson,  4  Johns.  Rep.  72.  This 
was  an  action  for  a  breach  of  the  covenant  of  seisin  in  a  deed,  brought 
by  the  heir  of  the  grantee  against  the  grantor,  for  a  breach  in  the  life- 
time of  the  ancestor;  and  it  was  held,  thit  the  action  was  not  sustaina- 
ble. This  decision  rests  upon  the  ground,  that,  as  there  was  a  failure 
of  title,  the  covenant  was  broken  immediately  on  the  execution  of  the 
deed,  and  that  the  grantee  had  an  immediate  and  perfect  right  of  ac- 
tion in  his  life-time,  which  went  to  his  personal  representatives,  and 
could  not  descend  to  the  heir.  In  strict  analogy  to  this  principle,  it  has 
been  decided,  that  the  assignee  of  a  grantee  cannot  maintain  an  action 
against  the  grantor,  for  a  breach  of  the  covenant  of  seisin  ;  because  if 
the  grantor  has  no  title,  the  covenant  is  broken  immediately,  and  the 
breach  is  a  noere  chose  in  action,  which  is  incapable  of  assignment. 
Greenby  V.  fTtVcocArs,  2  Johns.  Rep.  \.  J\I  itch  ell   v.    Warner,   5   Conn. 

VOL.   II,  12  (*7Sj 


90 


OF  THE  CONSTRUCTION  OF 


by  the  devisee  of  lands  in  fee,  though  broken  in  the  testa- 
tor's life-time(304).  For  the  covenant  passes  with  the  land 
to  the  devisee,  and  is  broken  in  the  time  of  the  devisee ; 
for  so  long  as  the  seller  has  not  a  good  title  there  is  a 
continuing  breach.  And  it  is  not  like  a  covenant  to  da 
an  act  of  solitary  performance,  which  not  being  done, 
the  covenant  is  broken  once  for  all,  but  is  in  the  nature 
of  a  covenant  to  do  a  thing  toties  quoties,  as  the  exigency 
of  the  case  may  require(e). 

And  as  covenants  entered  into  by  a  vendor  with  a  pur- 
chaser run  with  the  land  in  the  possession  of  his  repre- 
sentatives or  assignees,  so  on  the  other  hand  covenants 
entered  into  by  a  purchaser  with  the  vendor,  respecting 
the  land,  will  also  run  with  the  land,  and  charge  the 
representatives  or  assignees  of  the  purchaser  in  respect 
of  it. 

It  is  not,  however,  sufficient  that  a  covenant  is  concern- 
ing the  land  ;  but  in  order  to  make  it  run  with  the  land, 
there  must  be  a  privity  of  estate  between  the  covenanting 
parties(/).  Therefore,  it  seems  that  if  the  estate  was, 
(*)at  the  time  of  the  conveyance,  mortgaged  in  fee,  and 
the  purchaser  should  enter  into  a  covenant  respecting  the 
land  with  the  vendor,  the  covenant  would  not  bind  the 
assignees  of  the  land,  but  would  be  a  mere  covenant  un 
gross;  for  the  vendor  would,  in  contemplation  of  law,, 

(e)  Kingdon  v.  Nottle,  4  Mau.  &  Selvv.  53. 

(/)  Per  Lord  Kenyon,  Webb  v.  Russell,  3  Term  Rep.  393  ;  Stokes 
V.  Russell,  ibid.  678  j  affirmed  in  the  Exchequer  Chamber,  1  IL 
Blackst.  362;  see  3  Barn.  &  Adolph.  691. 

Rep.  497.  Bickford  v.  Page,  2  Mass.  Rep.  455.  See  farther,  Mars- 
ton  V.  Hobbs,  2  Mass.  Rep.  433.  Bennett  v.  Jrwin^  3  Johns.  Rep. 
365.  Pollard  v.  Dwight,  4  Cranch,  430.  Mitchell  v.  Hazen,  4 
Conn.  Rep.  495.     Davis  v.  Lrjman,  6  Conn.  Rep.  — 

(304)  See  Mitchell  v.  Warner,  5  Conn.  Rep.  606.     Per  HOSMER, 
Ch.  J. 
(*79) 


COVENANTS  FOR  TITLE. 


91 

be  a  mere  stranger,  and  consequently  there  could   be  no 
privity  of  estate  between  him  and  the  purchaser(305). 

And  even  where  there  is  a  privity  of  estate  at  the  time 
of  the  covenant,  yet  if  a  subsequent  purchaser  do  not 
take  the  estate  of  the  original  purchaser,  he  will  not  be 
bound  by  the  covenant.  It  seems  difficult  to  conceive 
that  this  case  can  exist.  It  occurred,  however,  in  the 
late  case  of  Roach  v.  Wadham(^)  ;  an  estate  was  con- 
veyed to  such  uses  as  the  purchaser  should  appoint ;  and 
in  default  of  appointment,  to  himself  in  fee,  yielding  and 
paying  to  the  vendors,  their  heirs  and  assigns,  a  perpetual 
.  fee-farm  rent,  which  rent  the  purchaser,  for  himself,  his 
I  heirs  and  assigns,  covenanted  to  pay  ;  the  estate  was 
afterwards  conveyed  to  a  purchaser ;  and  as  it  was  holden 
that  the  purchaser  was  in  under  the  power,  and  not  by 
virtue  of  the  first  purchaser's  estate,  it  was  admitted,  on- 
all  hands,  that  an  action  brought  against  him  by  the  ori- 
ginal vendor,  for  the  fee-farm  rent,  was  not  maintainable, 
for  he  had  not  the  estate  of  the  first  purchaser,  but  took 
as  if  the  original  conveyance  had  been  made  to  himself. 
This  decision  leads  to  the  observation,  that  wherever  a 
purchaser  is  to  enter  into  a  covenant,  which  it  is  intended 
shall  run  with  the  land,  the  vendor  ought  to  insist  upon 
the  purchaser  taking  a  conveyance  in  fee,  and  should  . 
not  permit  the  estate  to  be  limited  to  the  usual  uses  to 
bar  dower. 

The  proposition  before  stated,  that  it  is  not  sufficient 
that  a  covenant  is  concerning  the  land,  but,  in  order  to 
(*)make  it  run  with  the  land,  there  must  be  a  privity  of 
estate  between  the  covenanting  parties,  seems  to  apply  as 

ig)   6  E'ast,  289. 

(305)  See  JVesbit  v.  JVesbit,  Cam.  &  Nor.  318,  324.  Mitchell  v. 
Warner,  5  Con.  Rep.  497.  Lienow  v.  Ellis,  6  Mass.  Rep.  332.  Bun- 
bar  V.  Jumper,  Assignee  of  Thompson,  1  Yeates,  74. 

(*80) 


92 


OF  THE  CONSTRUCTION  OF 


well  to  covenants  entered  into  by  a  vendor,  as  to  cove- 
nants entered  into  by  a  purchaser.  But  the  consequences 
of  this  doctrine  are  truly  alarming.  In  a  great  proportion 
of  cases,  the  vendor  has  either  mortgaged  the  estate  in  fee, 
or  is  a  mere  cestui  que  trust ;  and  if  his  covenants  were  to 
be  deemed  covenants  in  gross,  the  assignees  of  the  land 
could  only  compel  performance  of  the  covenants  by  the 
circuitous  mode  of  using  the  name  of  the  first  purchaser 
or  his  representatives,  whom  at  the  distance  of  some  years 
it  might  be  very  difficult  to  trace. 

It  seems  impossible  to  get  over  the  objection,  by  the 
form  of  the  covenant ;  for  although  the  vendor  covenant 
with  the  purchaser,  his  heirs  and  assigns,  yet  the  assignee 
of  the  lands  will  not  be  entitled  to  the  benefit  of  the  cove- 
nant, unless  it  run  with  the  land  under  the  general  rule  of 
Iaw(A)(306).  The  only  mode  by  which  the  difficulty  can 
be  avoided  is,  to  require  the  vendor  to  take  a  conveyance 
to  himself  in  fee,  or  to  the  usual  uses  to  bar  dower,  pre- 
viously to  executing  a  conveyance  to  the  purchaser ;  and 
this,  I  believe,  has  been  sometimes  done  since  it  was  first 
suggested  in  this  work.  If,  indeed,  the  objection  should 
be  thought  to  exist,  it  might  also  be  thought,  that  where 
the  vendor  conveys  the  estate  to  the  purchaser  under  the 
usual  power  of  appointment,  the  covenants  will  not  run 
with  the  land  :  but  this,  it  is  conceived,  would  be  carry- 
ing the  rule  much  too  far ;  and  there  seems  to  be  some 
ground  to  contend,  that  even  in  Roach  v.  Wadham,  as 
the  power  was  coupled  with  an  interest,  the  second  pur- 
chaser might  have  been  held  to  have  come  in  under,  and 
to  stand  in  the  place  of  the  first  purchaser,  so  as  to  satisfy 
the  rule  of  law,  although   he  did   not  actually,  as  it  was 

(h)  See  Tempest's  case,  Clayt.  60  ;  and  see  Palm.  358,  and  Roach 
V.  Wadham,  ubi  sup. 

(306)   See  Greenby  v.  JVilcocks,  2  Johns.  Rep.  4,  5. 


COVENANTS  FOR  TITLE. 


93 


(*)determmecl,  take  the  estate  of  the  first  purchaser(i). 
The  point,  however,  was  considered  as  clear,  and  was 
not  discussed  either  at  the  bar  or  upon  the  bench(I). 

SECTION   II. 
Of  their  general  Construction. 


It  hath  already  been  observed(A;),  that  the  covenants 
usually  entered  into  by  a  vendor  seised  of  the  inherit- 
ance, are,  1st,  that  he  is  seised  in  fee  :  2dly,  that  he  has 
power  to  convey  :  3dly,  for  quiet  enjoyment  by  the  pur- 
chaser, his  heirs  and  assigns :  4thly,  that  the  land  shall 
be  holden  free  from  incumbrances :  and  lastly,  for  further 
assurance. 

The  five  covenants  are  several  and  distinct,  but  the 
first  and  second  of  them  are  synonymous  ;  for  if  a  man  be 
seised  in  fee,  he  has  power  to  sell(/).  But  the  converse 
of  this  proposition  is  not  universally  true(w). 

A  man  having  merely  a  power  to  appoint  an  estate, 

(i)  See  and  consider  Co.  Litt.  215  b.  s.  10  ;  Glover  i'.  Cope,  1  Show. 
284  ;  Hmd  v.  Fletcher,  Doug).  43  ;  Duke  of  IMarlborough  r.  Lord 
Godolphin,  2  Yes.  61  ;  and  see  3  Wills.  26,  at  the  bottom. 

(k)   Supra,  ch.  9. 

(/)  Nervin  v.  Munns,  3  Lev.  47  ;  Browning  v.  Wright,  2  Bos.  & 
Pull.  13. 

(m)  See  4  Cruise's  Dig.  78,  s.  30. 

(I)  As  the  case  of  the  Duke  of  Bedford  v.  the  Trustees  of  the  British 
Museum,  which  contains  some  important  doctrine  on  this  head,  has  not 
been  reported,  I  have  extracted  the  material  points  from  the  briefs 
and  shorthand  writer's  notes.     App.  No.  22. 

(*81) 


g^  OF  THE  CONSTRUCTION  OF 

cannot  be  said  to  be  seised  in  fee  of  the  estate,  although 
he  has  a  right  to  convey  :  and  accordingly,  in  cases  of 
this  nature,  it  is  usual  to  omit  the  first  covenant,  and  to 
insert  a  covenant  that  the  power  was  well  created,  and 
is  not  suspended  or  extinguished. 

(*)Covenants  for  title  are  either  general  and  unlimited, 
extending  to  the  acts  of  all  the  w^orld,  or  limited  and  re- 
stricted to  the  acts  of  certain  persons  named  in  the  deed ; 
and  under  this  branch  of  our  subject  we  may  consider, 
1st,  to  what  and  against  whose  acts  general  and  limited 
covenants  extend  :  2dly,  in  what  cases  restrictive  words 
shall  or  shall  not  extend  to  all  the  covenants  in  the  deed  : 
and  odly,  to  what  remedy  a  purchaser  is  entitled  under 
covenants  for  the  title,  in  case  he  is  evicted,  or  the  title 
prove  bad. 

I.  First  then,  1.  Although  covenants  are  general  and 
unlimited,  and  are  not  restricted  to  the  acts  of  persons 
claiming  lawfully,  yet  it  is  now,  perhaps,  settled  («), 
although  the  contrary  was  formerly  holden(o),  that  such 
a  covenant  shall  not  extend  to  a  tortious  eviction,  but  to 
evictions  by  title  only(307)  ;  because   the  law  itself  de- 

(n)  Dudley  v.  Foliott,  3  Term  Rep.  584.  See  Dy.  238  a,  marg. ; 
and  Crosse  v.  Young,  2  Show.  425,  and  the  cases  cited  in  the  note  to 
3  Term  Rep.  587  ;  in  some  of  which,  however,  the  point  was  not  decid- 
ed, but   a  distinction  was  taken  between  express  and  implied  covenants. 

(o)  Mountford  v.  Catesby,  Dy.  328  a.  See  1  Ro.  Abr.  430,  pi.  12  ; 
Shep.  Touch.  166,  170  ;  Anon.  1  Freem.  450,  pi.  612  ;  Anon.  2 
Ventr.  46  ;  Anon.  Loft.  460. 

(307)  See  Greenbij  v.  Wilcocks,  2  Johns.  Rep.  4.  Vanderkarr  v. 
Vmiderkarr,  11  Johns.  Rep.  122.  Kent  v.  TFe/c/i,  7  Johns.  Rep.  258. 
Foillard  v.  Wallace,  2  Johns.  Rep.  395.  Sedgwick  v.  Hollenhack,  7 
Johns.  Rep.  376.  Twanley  v.  Henhij,  4  Mass.  Rep.  442.  J\Iarston  v. 
Hobbs,  2  Mass.  Rep.  433.  Bearce  v.  Jackson,  4  Mass.j  Rep.  408. 
Hamilton  v.  Cutts,  4  Mass.  Rep.  349.  Duvall  v.  Craig,  2  Wheat.  45, 
61.  Pringlev.  Wittens^  Exr's.  1  Bay.  254.  Yancij  \.  Leivis,  4  Hen. 
&  Munf.  390.  Mitchell  v.  Warner,  5  Conn.  Rep.  497.  Ker  v.  Shau;  . 
13  Johns.  Rep.  236. 

(*82) 


COVENANTS  FOR  TITLE,  g^ 

fends  every  one  against  a  wrongful  entry ;  and,  therefore, 
if  a  purchaser  be  disturbed  in  his  possession  by  a  person 
having  no  title,  he  has  a  remedy  at  law  against  the  wrong 
doer  ;  and  if  he  be  legally  evicted,  he  may  recover  against 
the  vendor,  in  an  action  on  the  covenant.  Lord  C.  J. 
Vaughan(p)  adduces  the  four  following  reasons  why  the 
covenants  should  not  extend  to  tortious  evictions  :  1.  It 
is  unreasonable,  as  the  vendor  cannot  prevent  the  entry ; 
2.  the  vendee  has  his  remedy  against  the  wrong-doer,  and 
therefore  ought  not  to  charge  an  innocent  person  ;  3.  the 
vendee  would  have  a  double  remedy  for  the  same  injury ; 
(*)4.  it  might  open  a  door  to  fraud,  for  the  purchaser  might 
secretly  procure  a  stranger  to  make  a  tortious  entry,  that 
he  might  charge  the  covenantor  with  an  action.  And 
there  is  a  case  in  the  year-books  in  the  reign  of  Hen.  8. 
where  the  question  was,  whether  a  general  covenant  in 
a  lease  should  extend  to  an  eviction  by  one  who  had  no 
right.  Engleheld  said,  that  he  should  not  have  a  writ  of 
covenant  against  his  lessor  when  he  is  ousted  by  tort,  for 
there  is  no  mischief,  because  he  may  have  a  writ  of  tres- 
pass, or  an  ejectione  firmce  against  the  person  who  ousted 
him ;  but  if  he  was  ousted  by  one  who  had  a  title  para- 
mount against  whom  he  could  have  no  relief,  then  he  may 
have  a  writ  of  covenant  against  his  lessor.  Quod  fuit 
concessum  per  plusieurs(q). 

2.  But  where  a  vendor  covenants  to  indemnify  a  pur- 
chaser against  a  particular  person  by  name,  there  the 
covenant  shall  extend  to  an  entry  by  that  person,  be  it 
by  droit  or  tort,  for  it  is  to  be  presumed  that  such  person 
had  an  interest(r). 

(p)  Vaugh.  122. 

iq)   T.  26  H.  8,  pi.  11. 

(r)  Foster  v.  Mapes,  Cro.  Eliz.  212  ;  Hob.  35  ;  1  Ro.  Abr,  430,  pi. 
13.  See  Hayes  v.  Bickerstaff,  Vaugh.  1 18  ;  Nash  i».  Palmer,  5  Mau, 
&  Selw.  374.  Fowle  v.  Welsh,  1  Barn.  &  Cress.  29  ;  2  Dowl.  &  Ryl. 
133. 

(*83) 


96 


OF  THE  CONSTRUCTION  OF 


3.  And  where  the  covenantor  himself  does  any  act 
asserting  a  title,  it  will  be  a  breach  of  the  covenant, 
although  he  covenanted  against  lawful  disturbances  only, 
and  the  act  done  by  him  was  tortious,  and  might  be  the 
subject  of  an  action  of  trespass(5)(308).  The  contrary, 
however,  was  formerly  holden(i).  It  must,  nevertheless, 
be  an  act  asserting  a  title  ;  therefore,  if  the  seller  went 
on  the  estate  to  sport,  the  purchaser  could  not  maintain 
covenant(w). 

(*)4.  So  a  covenant  against  all  claiming  or  pretending 
to  claim  any  right  extends  to  a  tortious  eviction(u). 

5.  And  whatever  opinion  may  anciently  have  been  en- 
tertained(a;),  yet  it  is  now  clear,  that  a  suit  in  equity,  by 
which  the  purchaser  is  disturbed,  is  within  a  covenant  for 
quiet  enjoyment  against  disturbances  generally(2/).  It 
is,  however,  customary  to  expressly  extend  covenants  for 
title  to  equitable  charges,  disturbances,  &c. 

6.  In  a  case  where  the  seller  covenanted  generally  that 
he  was  seised  in  fee,  without  any  condition,  &c.  or  any 
other  estate,  matter,  cause,  restraint,  or  thing  whatsoever, 
whereby  to  alter,  bar,  change,  charge,  burthen,  impeach, 
incumber  or  determine  the  same,  and  had  good  right  to 
convey  the  same  ;  it  appeared  that  the  lady  of  the  manor 
had  actually  demised  a  small  part  of  the  land  sold  for 
ninety-nine  years,  determinable  on  lives,  and  the  lessees 
had  entered  and  continued  to  enjoy  the  estates.     It  was 

(s)  Lloyd  V.  Tomkies,  1  Term  Rep.  671  ;  Crosse  v.  Young,  2 
Show.  425  ;   S.  C.  MS. 

{t)  Davie  v.  Sacheverell,  1  Ro.  Abr.  429,  pi.  7. 

(«)   See  Seddon  v.  Senate,  13  East,  72. 

iv)  Chaplain  v.  Southgate,  10  Mod.  384  ;  Com.  230;  Perry  v.  Ed- 
wards, 1  Str.  400. 

{x)  Selby  r.  Chute,  Mo.  859;  1  Brownl.  23;  Wince,  116  ;  1  Ro. 
Abr.  430,  p.  15  ;  and  see  3  Leo.  71,  pi.  109. 

(y)  Calthorp  v.  Hayton,  2  Mod.  54  ;  Hunt  v.  Danvers,  T.  Raym.  370. 


(308)   See  Sedgwick  v.  Hollenback,  7  Johns.  Rep.  376. 

(*84) 


COVENANTS  FOR  TITLE. 


97 


held  that  the  lease  was  made  by  mistake,  and  did  not 
amount  to  a  disseisin,  and  that  the  covenant  did  not 
extend  to  the  leases.  It  was  asked,  what  can  a  man  be 
supposed  to  covenant  against  beyond  the  validity  of  the 
title  ?  and  most  assuredly  not  against  these  surreptitious 
pocket  leases.  The  action  of  covenant,  it  was  added,  only 
extended  to  the  consequence  of  legal  acts,  and  the  reason 
is  to  be  found  in  the  case  of  Hayes  v.  BickerstafF,  that  the 
law  shall  never  judge  that  a  man  covenants  against  the 
wrongful  acts  of  strangers(2:). 

It  will  be  observed,  that  the  leases  were  accompanied 
with  actual  possession  by  the  lessees,  who  had  expended 
(*)money  on  the  property.  They  were  therefore  within 
the  covenant,  and  unless  the  covenants  were  held  to  ex- 
tend to  them,  general  covenants  for  title  would  be  waste 
paper. — They  are  always  intended  to  guard  against  a  title 
adverse  to  the  covenantor's,  although  it  may  not  be  a  law"- 
ful  title.  Clearly  the  leases  were  a  charge  on  the  pro- 
perty at  the  time  of  the  conveyance,  and  an  ejectment  at 
all  events  was  necessary  to  dispossess  the  lessees.  They 
therefore  were  an  incumbrance  within  the  covenant.  It 
is  not  like  the  case  of  interruptions  by  persons  not  claim- 
ing lawfully  subsequently  to  the  conveyance. 

7.  A  covenant  for  right  to  convey  extends  not  only  to 
the  title  of  the  covenantor,  but  also  to  his  capacity  to  grant 
the  estate.  Therefore,  where,  upon  a  conveyance  by  a 
man  and  his  wife,  the  husband  covenanted  that  they  had 
good  right  to  convey  the  lands,  and  the  w^ife  was  under 
age,  the  covenant  was  adjudged  to  be  broken(«). 


In  respect  to  the   persons  against  whose  acts  limited 
covenants  will  extend,  it  seems  that, 

1.  A  covenant  for  quiet  enjoyment  against  A.  and  any 

(z)  Jerritt  v.  Weare,  3  Price,  675. 

(a)  Nash  v.  Ashton,  Sir  Tho,  Jones,  195. 

VOL.  11.  13  (*85) 


98 


OF  THE  CONSTRUCTION  OF 


Other  person  bj  his  means,  title  or  procurement,  is  broken 
by  the  entry  of  a  person  in  whose  name  A.  purchased 
jointly  with  his  own  name(6). 

2.  In  this  case  Mr.  Justice  Doddridge  put  many  cases. 
If  a  tenant  in  tail  to  whom  the  estate-tail  was  made, 
makes  an  estate  and  covenants  as  before,  and  the  issue 
ousts  the  covenantee,  the  covenant  is  broken,  because, 
being  his  purchase,  the  descent  to  his  issue  is  by  his 
means,  although  not  by  his  title.  But  if  the  issue  make 
an  estate  and  covenant,  and  the  issue  of  the  issue  enter,  it 
is  not  broken,  because  they  are  not  in  by  his  means,  but 
(*)by  descent.  But  if  there  be  a  lessee  for  life,  remain- 
der over;  and  the  lessee  make  an  estate  and  covenant,  and 
die,  and  he  in  remainder  enter,  it  is  not  broken,  because 
he  is  in  by  the  feoffor,  not  by  the  lessee.  But  if  a  man 
enfeoff  upon  condition  to  be  enfeoffed  for  life,  remainder 
over,  there  it  shall  be  otherwise,  because  by  his  procure- 
ment and  means ;  et  sic  de  smilibus. 

3.  So  if  A.  covenant  for  quiet  enjoyment  against  all 
claiming  by,  from  or  under  him,  a  claim  of  dower  by  his 
wife  is  within  the  covenant ;  but  otherwise,  if  the  mother 
of  A.  claim  her  dower,  because  she  does  not  claim  by, 
from  or  under  him(c). 

4.  A  covenant  for  quiet  enjoyment  against  A.,  or  any 
person  claiming  under  him,  extends  to  a  person  deriving 
title  under  an  appointment  made  by  A.,  by  virtue  of  a 
power,  in  the  creation  of  which  he  concurred,  although 
the  estate  did  not  move  from  A,,  and  the  estate  of  the 
appointee  is,  according  to  the  general  rule,  considered  as 
limited  to  him  by  the  deed  creating  the  power. 

This  was  settled  in  the   case  of  Hurd  v.  Fletcher(t?). 

(6)  Butler  v.  Swinnerton,  Palm.  339  ;  Cro.  Jac.   657.     Spencer  v. 
Marriott,  1  Barn.  &  Cress.  467 ;  2  Dowl.  &  Ryl.  665.  S.  C. 

(c)  Godb.  333 ;  Palm.  340. 

(d)  Dougl.  43  ;  see  Evans  v.  Vaughan,  4  Barn.  &  Cress.  261 ;  6 
Dowl.  &  Ryl.  349.    - 

(*86) 


[COVENANTS  FOR  TITLE.  g^ 

Sir  John  Astlej  and  his  wife  levied  a  fine  of  her  estate 
to  the  use  of  Sir  John  for  life,  with  power  of  leasing; 
remainders  over,  with  a  joint  power  of  revocation  to  Sir 
John  and  Ladj  Astley.  They  exercised  this  power,  and, 
subject  to  the  husband's  life-estate,  and  power  of  leasing 
and  other  uses,  which  aftervA  ards  determined,  limited  the 
estate  to  Lord  Tankerville  in  tail.  Sir  John  afterwards 
granted  a  lease  not  warranted  by  the  power,  and  cove- 
nanted for  quiet  enjoyment  by  the  lessee,  without  any 
interruption  by  him,  or  any  person  or  persons  claiming, 
or  to  claim  by,  from  or  under  him.  Lord  Tankerville's 
remainder  in  tail  having  fallen  into  possession,  he  evicted 
the  lessee  on  account  of  the  defective  execution  of  the 
(*)power,  whereupon  the  lessee  brought  an  action  against 
Sir  John's  executors  ;  and  it  was  holden,  that  Sir  John 
was  a  necessary  party  to  the  second  declaration  of  uses ; 
and,  therefore.  Lord  Tankerville  claimed  under  him,  and 
the  eviction  was  within  the  covenant. 

5.  It  may  be  proper  to  mention,  that  the  case  of  Butler 
V.  Swinnerton,  which  (to  borrow  an  expression  of  Lord 
Kenyon's)  is  the  magna  charta  of  the  liberal  construction 
of  covenants  for  title,  is  also  stated  in  Shep.  Touch.  171, 
which  goes  on  to  state,  "  and  so  it  is  also,  if  A.  purchase 
land  of  B.,  to  have  and  to  hold  to  A.  for  life,  the  remainder 
to  C.  the  son  of  A,  in  tail,  and  after  A.  doth  make  a  lease 
of  this  land  to  D.  for  years,  and  doth  covenant  for  the 
quiet  enjoying,  as  in  the  last  case,  and  then  he  dieth  ; 
and  then  C.  doth  oust  the  lessee  ;  in  this  case  this  was  held 
to  be  110  breach  of  the  covenant :"  and  for  this  position. 
Swan's  case,  M.  7  and  8  Eliz.  is  cited,  and  no  reference 
is  made  to  any  other  report  of  the  case.  Now  this  case, 
as  it  stands  in  Shep.  Touch,  (a  book  of  acknowledged 
authority)  is  in  direct  opposition  to  the  decision  in  Butler 
V.  Swinnerton  ;  but  from  other  reports  of  Swan's  casc(e), 

(c)  Mo.  74,  pi.  201  ;  Dy.  257,  pi.  13;  Bcndl.  138,  pi.  208;  mid 
And    12,  pi.  25. 

(*87) 


1QQ  OF  THE  CONSTRUCTION  OF  ; 

it  appears  that  there  was  no  actual  covenant  in  the  lease, 
but  merely  a  covenant  in  law  on  the  words  "  concessit  et 
dimisit,^^  and  therefore  the  Judges  thought  the  action  did 
not  lie,  because  the  covenant  determined  with  the  estate 
ot  the  lessee. 

6.  A  covenant  for  quiet  enjoyment,  quietly  and  clearly 
acquitted  of  and  from  all  grants,  fee.  rents,  rent-charges, 
&c.  whatsoever,  has  been  holden  to  extend  to  an  annual 
quit-rent  payable  to  the  lord  of  the  manor,  and  incident  to 
the  tenure  of  the  lands  sold,  although  there  was  no  arrear 
oftherentdue(/X311). 

7.  A  covenant  for  quiet  enjoyment  against  any  inter- 
ruption (*)of,  from  or  by  the  vendor  or  his  heirs,  or  any 
person  \^  homsoever,  legally  or  equitably  claiming,  or  to 
claim  any  estate,  &c.  in  the  premises,  by,  from,  under  or 
in  trust  for  him  or  them,  or  by,  through  or  with  his  or 
their  acts,  means,  default,  privity,  consent  or  procure- 
ment, was  adjudged  to  extend  to  an  arrear  of  quit-rent 
due  at  the  time  of  the  conveyance,  although  it  was  not 
shown  that  the  rent  accrued  due  during  the  time  the 
vendor  held  the  estate.  For  the  Court  said,  if  it  were  in 
arrear  in  his  life-time,  it  was  a  consequence  of  law,  that 
it  was  by  his  default ;  that  is,  by  his  default  in  respect  of 
the  party  with  whom  he  covenants  to  leave  the  estate 
unincumbered(g). 

In  this  case  it  was  argued  by  the  counsel  for  the  ven- 
dor, and  apparently  on  very  solid  grounds,  that  to  make 
the  vendor  liable  to  the  arrear  of  this  rent,  under  his 
covenant,  would  be  tantamount  to  a  decision  that  the 
covenant,  although  limited,  should  extend  to  the  acts  of 
all   the  world.     The  clear  intention  of  the  parties  was, 

(/)   Hammond  v.  Hill,  Com.  180, 

{g)  Howes  V.  Brushfield,  3  East,  491.  See  and  consider  Lord  AI- 
vanley's  judgment  in  Hesse  r.  Stevenson,  3  Bos.  Si  Pull.  665. 

(311;  See  J^/'ew-York  Corporation  v.  Cashman^  10  Johns.  Rfp.  96. 


COVENANTS  FOR  TITLE.  -JQJ 

that  the  vendor  should  covenant  against  his  own  acts 
only ;  and  yet  it  should  seem  that  the  argument  of  the 
Court  would  apply  as  well  to  a  mortgage,  or  any  other 
incumbrance  created  by  a  prior  owner,  as  to  an  arrear  of 
quit-rent,  in  payment  of  which  a  former  occupier  made 
default. — The  reader  should  be  cautious  how  he  applies 
this  decision  to  cases  arising  in  practice,  as  it  may  lead 
him  to  draw  conclusions  not  authorized  by  prior  deci- 
sions. 

8.  We  should  be  careful  to  distinguish  the  foregoing 
case  from  that(^)  where  the  lessor,  reciting  that  he  was 
seised  of  an  estate  of  freehold  and  inheritance  in  the  estate, 
(*)covenanted  for  quiet  enjoyment  against  himself,  his  heirs, 
&c.  or  any  other  person  or  persons  lawfully  claiming  by, 
from  or  under  him,  &c.  or  by  or  through  his,  their  or  any 
of  their  acts,  means,  default  or  procurement.  The  lessees 
were  evicted  by  the  remainder-man  under  a  settlement, 
and  it  appeared  that  the  lessor  could  have  obtained  the 
fee-simple  by  suffering  a  recovery.  Lord  Rosslyn  con- 
sidered it  to  be  clear,  that  on  eviction  by  any  person 
claiming  paramount  to  the  lessor,  they  must,  upon  that 
eviction,  have  under  the  covenant  in  the  leases  satisfac- 
tion from  his  assets.  The  ground  of  this  opinion  must 
have  been,  that  the  eviction  was  owing  to  the  default  of 
the  lessor,  in  not  suffering  a  recovery.  He  assumed  to 
be  tenant  in  fee,  and  the  nature  of  his  title  rested  in  his 
own  breast ;  whether  the  default  arose  from  fraud  or  neg- 
ligence was  to  the  lessees  immaterial. 

9.  In  Woodhouse  v.  Jenkins(i),  tenant  for  life  and  his 
eldest  son  remainder-man  in  tail,  demised  to  A.  for  99  years, 
he  being  aware  of  their  title,  and  they  covenanted  with 
him  for  quiet  enjoyment  against  themselves,  their  heirs 

(/i)  Lady  Cavan  v.  Pulteney,  2  Vcs.  jun.  544.  See  Reg.  Lib.  B. 
1799,  fo.  816. 

■  t)   9  Bing.  431  ;  2  :>Ioo.  &  Scott,  599,  H.  C. 

(*b9) 


2Q2  OF  THE  CONSTRUCTION  OF 

and  assigns,  and  all  persons  claiming  under  them.  A. 
granted  an  under-lease  of  the  estate  to  B.,  and  covenanted 
for  quiet  enjoyment  against  himself,  his  heirs,  executors, 
administrators  and  assigns,  "  or  of  or  by  any  other  person 
or  persons  whomsoever  lawfully  claiming  or  to  claim  by, 
from  or  under  him,  them,  or  any  of  them,  or  by  his,  their, 
or  any  of  their  acts,  means,  consent,  neglect,  default, 
privity  or  procurement."  The  tenants  for  life  and  in 
tail  both  died,  the  latter  without  issue,  and  B.  was  evicted 
by  the  next  remainder-man  ;  it  was  held  that  A,  was  not 
liable  on  his  covenant,  for  the  eviction  was  by  a  title 
paramount,  which  he  could  not  have  defeated.  The 
Court  observed,  that  if  the  eviction  could  be  brought 
(*)  within  the  terms  of  the  covenant,  it  must  fall  within  that 
part  of  it  which  provides  against  any  persons  claiming 
"  by  the  acts,  means,  consent,  neglect,  default,  privity  or 
procurement  of  A.,  &;c."  It  was  not  an  eviction  arising 
from  the  acts,  means,  or  procurement  of  the  lessor.  After 
referring  to  the  case  of  Butler  and  Swinnerton,  the 
Court  said,  that  in  the  present  case,  no  act  was  done  by 
the  lessor,  no  consent  was  given  to  the  eviction,  there 
was  no  privity,  no  procurement ;  and  consequently  the 
only  words  of  the  covenant,  if  any,  upon  which  a  breach 
could  be  assigned,  would  be  the  remaining  words,  "  neg- 
lect or  default."  Now  it  must  be  admitted  that  the 
eviction  would  have  been  prevented  if  A.,  at  the  time  he 
took  the  leases  for  99  years,  had  required  the  lessors  to 
join  in  common  recoveries  to  cut  off  the  entails,  and  if 
the  lessors  had  complied  with  such  requisition.  The 
question  is,  therefore,  whether  the  not  procuring  such 
common  recoveries  to  be  suffered  was  a  "  neglect  or  de- 
fault" in  A.,  within  the  meaning  of  the  covenant.  And 
the  Court  were  of  opinion  that  no  breach  of  covenant 
could  be  assigned  on  those  words,  unless  it  could  be 
averred  in  the  declaration  that  A.,  at  the  time  the  leases 
were  made  to  him,  had  the  power  or  means  of  procuring 

(*90) 


COVENANTS  FOR  TITLE.  |Q3 

such  common  recoveries  to  be  suffered  by  his  lessors, 
the  tenants  for  life  and  in  tail,  and  that  he  neglected  or 
omitted  so  to  do.  With  such  an  allegation  made  and 
proved,  an  action  of  covenant  might  possibly  be  main- 
tainable, but  not  without  it.  For  if  A.  had  no  means  of 
compelling  common  recoveries  to  be  suffered  by  the 
lessors,  if  upon  his  requisition  they  refused,  it  could 
hardly  be  said  that  he  was  guilty  of  any  neglect  or  de- 
fault in  not  procuring  that  step  to  be  taken  which  he 
was  unable  to  compel.  It  might  indeed  show  a  want  of 
discretion  in  A.,  that  he  took  leases  under  such  a  de- 
feasible title ;  but  a  neglect  and  a  default  seemed  to 
(*)imply  something  more  than  the  mere  want  of  discre- 
tion with  respect  to  his  own  interests  ;  something  like  the 
breach  of  a  duty  or  legal  obligation  existing  at  the  time  ; 
those  words,  in  their  proper  sense,  implying  the  not 
doing  some  act  to  secure  his  title  which  he  ought  to 
have  done,  and  which  he  had  the  power  to  do,  and  the 
not  preventing  or  avoiding  some  danger  to  the  title, 
which  he  might  have  prevented  or  avoided. 


II.  We  are  now  to  consider  in  what  cases  restrictive 
words  added  to  some  of  the  covenants  only,  shall  extend 
to  all  the  covenants  in  the  deed. 

It  may  be  first  necessary  to  premise,  that  where  cove- 
nants are  limited  to  particular  acts,  as  to  the  acts  of  the 
vendor  for  instance,  the  covenants  are  restrained  in  the 
following  manner :  "  that  for  and  notwithstanding  any 
act,  deed,  matter  or  thing  whatsoever,  by  him  the  said 
A.,  the  vendor,  made,  done,  committed  or  executed,  or 
knowingly  or  willingly  suffered  to  the  contrary  thereof," 
he  is  seised  in  fee.  And  that,  "  for  and  notwithstanding 
any  such  act,  deed,  matter  or  thing  whatsoever,  as  afore- 
said," he  has  power  to  convey.  And  that  the  purchaser, 
his  heirs  and  assigns,  shall  quietly  enjoy  "  without  the 
interruption,  &c.  of  A.  or  his  heirs,  or  any  person  claim- 

(*91) 


IQ4  OF  THE  CONSTRUCTION  OF 

ing  by,  from  or  under,  or  in  trust  for  him  or  them." 
"  And  thaf\\)  free  from  incumbrances  made  or  suffered 
"  by  A.,  or  any  person  claiming  by,  from  or  under,  or  in 
trust  for  him."  And  lastly,  that  "^.,  and  all  persons 
(*)claiming  any  estate  in  the  premises  by,  from  or  under, 
or  in  trust  for  him,"  shall  execute  further  assurances. 
But  although  this  is  the  usual  and  technical  manner  of  re- 
straining covenants,  yet  an  agreement,  in  any  part  of  a 
deed,  that  the  covenants  shall  be  restrained  to  the  acts  of 
particular  persons,  will  be  good,  notwithstanding  that  the 
covenants  themselves  are  general  and  unlimited(y)(312). 

2.  General  covenants  will  not,  however,  be  cut  down, 
unless  the  intention  of  the  parties  clearly  appears(313). 

Therefore,  in  the  case  of  Cooke  v,  Fowndes(/c),  where 
the  vendor  covenanted  that  he  was  seised  of  a  good  estate 
in  fee,  according  to  the  indentwe  made  to  him  by  B.  (of 
whom  he  purchased),  it  was  determined  to  be  a  general 
covenant ;  for  the  reference  to  the  conveyance  by  B. 
served  only  to  denote  the  limitation  and  quality  of  the 
estate,  and  not  the  defeasibleness  or  indefeasibleness  of 
the  title. 

In  a  modern  case,  where,  in  an  assignment  of  a  lease 
by  executors,  they  had  covenanted  for  quiet  enjoyment 

(j)  Brown  v.  Brown,  1  Lev.  57. 
ik)   1  Lev.  40  ;   1  Keb.  95. 

(I)  This  pronoun  is  used  emphatically.  You  shall  enjoy  the  estate, 
and  that  free  from  incumbrances.  Dr.  Johnson  has  extracted  a  pas- 
sage from  the  Duty  of  Man,  in  which  the  word  is  used  in  the  same 
sense  :  "  We  must  direct  our  prayers  to  right  ends  ;  and  that  either  in 
respect  of  the  prayer  itself,  or  the  things  we  pray  for."  It  has,  how- 
ever, been  thought  that  the  word  has  crept  into  the  common  form  of 
covenants  through  inadvertence. 

(312)  See  CoU  v.  Hawes,  2  Johns.  Cas.  203. 

(313)  See  fVhallon  v.  Kauffman,  19  Johns.  Rep.  97.  Jackson  v. 
Stevens,  16  Johrvs.  Rep.  110. 

(*-92) 


COVENANTS  FOR  TITLE.  -iQe 

without  any  let,  &c.  of  them,  or  either  of  them,  their  or 
either  of  their  executors,  administrators  or  assigns,  or 
any  other  person  or  persons  ivhomsoever,  it  was  insisted 
at  the  bar  that  executors  can  only  l^e  understood  to 
covenant  against  their  own  acts  ;  and  therefore,  that  the 
words  "  any  other  person  or  persons  whomsoever,"  must 
be  restrained  to  persons  claiming  under  them.  And  it 
is,  perhaps,  not  too  much  to  saj,  that  the  opinion  of  the 
Court  inclined  to  this  construction(/j(314).  Wherever, 
therefore,  executors  or  trustees  agree  to  enter  into  cove- 
nants extending  beyond  their  own  acts,  the  agreement  of 
the  parties  should  be  distinctly  stated  in  the  recitals. 

3.  In  a  case(m)  where  A.  and  B.  were  joint-tenants  for 
'(*)years  of  a  mill,  A.  assigned  all  his  interest  to  C,  with- 
out the  assent  of  B.,  and  died.  B.  afterwards,  by  inden- 
ture reciting  the  lease,  and  that  it  came  to  him  by  survi- 
vorship, granted  the  residue  of  the  term  to  /.  *S'.,  and  co- 
venanted for  quiet  enjoyment  of  it  notwithstanding  any 
act  done  by  him.  B.  also  gave  the  purchaser  a  bond  con- 
ditional to  perform  the  covenants,  grants,  articles  and 
agreements  in  the  assignment ;  and  the  purchaser  having 
been  evicted  by  C.  of  the  moiety  assigned  to  him,  brought 
an  action  on  the  bond,  and  obtained  judgment.  Lord 
Eldon(/i)  seemed  to  consider  the  judgment  as  having 
turned  on  the  recital,  and  that  the  recital  itself  amounted 
to  a  warranty.  But  the  ground  of  the  decision  appears 
to  be,  that  the  word  grant  in  the  assignment  amounted  to 
a  warranty  of  the  title,  and  was  not  qualified  by  the  en- 
suing particular  covenant,  because  the  grant  was  of  the 
whole  estate,  as  appeared  from  the  recital,  and   was  de- 

(/)  Noble  V.  King,  1  H.  Black.  34. 

(m)  Proctor  v.  Johnson,  Yelv.  175  ;  Cro.  Eliz.  809  ;  Cro.  Jac,  233. 
(n)   See  2  Bos.  &  Pull.  25  ;  and  see  Seddon  r.  Senate,  13  East,  63  ; 
Barton  v.  Fitzgerald,  15  East,  530. 


(314)   See  Thayer  v.  Wendell,  1  Gallis.  37. 

VOL.    II.  14  (*93) 


"iQg  OF  THE  CONSTRUCTION  OF 

fective  from  the  first  as  to  a  moiety,  and   the  condition  of 
the  bond  was  to  perform  all  grants,  &c-(315). 

It  seems  material  to  refer  the  case  of  Johnson  v.  Proc- 
tor to  the  true  ground  of  the  decision,  because  if  the  case 
turned  solely  on  the  recital,  it  might  perhaps  be  thought 
that  a  general  recital  in  a  conveyance  of  the  inheritance 
of  an  estate,  that  the  vendor  is  seised  in  fee,  would  amount 
to  a  general  warranty,  and  would  not  be  controlled  by 
limited  covenants  for  the  title — a  proposition  which  cer- 
tainly cannot  be  supported. 

4.  Where  restrictive  words  are  inserted  in  the  first  of 
several  covenants  having  the  same  object,  they  will  be 
construed  as  extending  to  all  the  covenants,  although 
they  are  distinct. 

Thus,  in  Nervin  v.  Munns(o),  the  vendor  covenanted, 
(*)lst,  that  notwithstanding  any  act  by  him  to  the  con- 
trary, he  was  seised  in  fee  :  2dly,  that  he  had  good  right 
to  convey :  3dly,  that  the  lands  were  clear  of  all  incum- 
brances made  by  him,  his  father,  or  grandfather:  and 
4thly,  that  the  vendee  should  quietly  enjoy  the  estate 
against  all  persons  claiming  under  the  vendor,  his  father, 
or  grandfather.  And  it  was  holden  by  three  Justices 
against  North,  Chief  Justice,  that  the  second  covenant, 
although  general,  was  restrained  by  the  first  covenant  to 
acts  done  by  the  vendor. 

So  in  Browning  v.  Wright(p),  where  a  vendor  who 
claimed  an  estate  in  fee  by  purchase,  sold  the  estate,  and 

(o)  3  Lev.  46. 

(p)   2  Bos.  &  Puli.  13. 

(315)  See  Kent  v.  Welch,  7  Johns.  Rep.  258.  See  also,  Vander- 
karr  v.  Vanderkarr,  11  Johns.  Rep.  122.  Where  there  is  an  e.vpress 
covenant,  more  limited  than  the  covenant  which  the  law  would  imply, 
it  will  have  the  effect  of  restraining  the  implied  covenant.  Blair  v. 
Hardin,  1  Marsh.  232.  And  a  particular  recital  in  a  deed,  cannot  be 
restrained  by  general  words.  See  Jackson  v.  Stevens,  16  Johns.  Rep. 
110. 
(*94) 


COVENANTS  FOR  TITLE. 


107 


covenanted  first,  that  notwithstanding  any  thing  by  him 
done  to  the  contrary,  he  was  seised  in  fee,  "  and  that  he 
!iad  good  right,  &c.  to  convey  in  manner  aforesaid,"  it 
was  holden  that  the  generality  of  the  latter  covenant  was 
restrained  by  the  restrictive  words  in  the  former.  For,  in 
the  first  place,  the  purchaser  was,  according  to  the  general 
practice,  entitled  to  limited  covenants  only  ;  and,  in  the 
next  place,  the  special  covenants  would  be  of  no  use,  if 
the  other  were  general.  Besides,  the  defendant  having 
covenanted  that,  "  for  and  notwithstanding  any  thing  by 
him  done  to  the  contrary,"  he  was  seised  in  fee,  and  that 
he  had  good  right  to  convey  ;  the  latter  part  of  the  cove- 
nant, coupled  as  it  was  with  the  former  part  by  the  words 
*'  and  that,"  must  necessarily  be  over-ridden  by  the  intro- 
ductory words  "  for  and  notwithstanding  any  thing  by 
him  done  to  the  contrary(^)." 

Again,  where  tenant  per  auter  vie  leased  for  twenty- 
one  years,  and  covenanted  that  he  had  not  done  any  act, 
but  the  lessee  should  or  might  enjoy  it  during  the  years  ; 
afterwards,  within  the  twenty-one  years,  cestui  cjue  vie 
(*)died  ;  and  it  was  adjudged  that  the  covenant  was  not 
broken,  for  "  but"  referred  the  subsequent  words  to  the 
preceding  words(r). 

So  in  Broughton  v,  Conway(5),  a  covenant  that  the 
vendor  had  not  done  any  act  to  disturb  the  vendee,  but 
that  the  assignee  might  enjoy  without  the  disturbance  of 
him  or  any  other  person,  was  held  to  be  confined  to  acts 
done  by  the  vendor,  on  the  ground  of  the  latter  words 
being  only  a  continuation  of  and  dependent  on  the  pre- 
ceding matter.  In  this  case,  however,  one  of  the  Judges 
was  decidedly  of  a  contrary  opinion  ;  and  certainly  there 

iq)   Pet  Lord  Alvanley,  3  Bos.  &  Pull.  574. 

(r)  Peles  v.  Jervies,  Dy.  240,  marg.  ;  do.  Jac.  615,  pi.  5. 

(«)  Dy.  240 ;  Mo.  68 ;  and  see  S.  C.  cited  and  applied  by  Lord 
Ellenborough,  C.  J.  8  East,  89  ;  and  1  Bnjd.  &  Bing.  310 ;  3  Moo. 
730. 

(*95^ 


1QO  OF  THE  CONSTRUCTION  OF 

were  express  words  to  get  over,  namely,  "  or  any  other 
person  ;"  which  circumstance  does  not  occur  in  any 
other  of  this  line  of  cases,  in  all  of  which  the  reader  will 
perceive,  that  no  word  was  rendered  inoperative,  but  the 
introductory  clause  was  merely  held  to  extend  over  all 
the  distinct  covenants,  in  the  same  manner  as  a  general 
introduction  to  a  uill  frequently  influences  the  whole 
will.  And  in  a  recent  case(^),  where  the  covenants  were 
introduced  with  the  usual  words,  restricting  them  to  the 
covenantor's  own  acts,  but  the  covenants  for  quiet  enjoy- 
ment ended  thus  :  "  of  or  by  the  said  grantors  or  any  of 
them,  &c.  or  of  or  bij  any  other  person  or  persons  what- 
soever :"  and  the  covenant  against  incumbrances  was 
general,  excepting  only  a  chief-rent ;  the  Court  of  King's 
Bench  determined,  that  the  covenant  for  quiet  enjoyment 
was  not  restrained  by  the  introductory  words  of  restric- 
tion, but  was  general  and  unlimited.  Lord  Ellenborough, 
C.  J.  in  delivering  the  opinion  of  the  Court,  justly  laid 
great  stress  on  the  covenant  being  a  distinct  covenant 
(*)from  the  covenant  for  title.  He  said,  that  it  was  per- 
fectly consistent  with  reason  and  good  sense,  that  a  cau- 
tious grantor  should  stipulate  in  a  more  restrained  and  lim- 
ited manner,  for  the  particular  description  of  title  which 
he  purports  to  convey,  than  for  quiet  enjoyment.  He  may 
suspect,  or  even  know,  that  his  title  is,  in  strictness  of 
law,  in  some  degree  imperfect,  but  he  may  at  the  same 
time  know,  that  it  has  not  become  so  by  any  act  of  his 
own ;  and  he  may  likewise  know,  that  the  imperfection 
is  not  of  such  a  nature  as  to  afford  any  reasonable  chance 
of  disturbance  whatever  to  those  who  should  take  under 
it  ;  he  may,  therefore,  very  readily  take  upon  him  an  in- 
demnity against  an  event  which  he  considers  as  next  to 
impossible,  while  he  chooses  to  avoid  a  responsibility  for 
the  strict  legal  perfection  of  his  title  to  the  estate,  in  case 

{t)   Howell  r.  Richards,  1  i  East,  633. 
(*96 ) 


COVENANTS  FOR  TITLE.  ]  QQ 

it  should  be  found  at  any  period    to   have   been   liable  to 
some  exception  at  the  time  of  his  conveyance. 

In  a  later  case(?/),  where  the  subject  was  elaborately 
discussed,  the  covenants  in  an  assignment  of  a  leasehold 
estate  were,  1.  that  notwithstanding  any  act  by  the  seller, 
the  lease  was  a  good  lease  ;  2.  "  and  further,  that"  the 
purchaser  might  peaceably  enjoy  without  any  interruption 
from  "  the  seller,  his  executors,  administrators  or  assigns, 
or  any  other  person  or  persons  whatsoever  having  or 
lawfully  claiming,  or  who  should  or  might  at  any  time 
or  times  thereafter,  during  the  said  term,  have  or  lawfully 
claim  any  estate,"  &c.  in  the  premises  ;  and  that  free  from 
incumbrances  by  the  seller ;  and  moreover,  for  further 
assurance  by  the  seller,  his  executors  and  administrators, 
and  all  persons  claiming  by,  from,  under  or  in  trust  for 
him  or  them.  All  the  covenants  therefore  were  restricted 
to  the  acts  of  the  seller,  except  the  covenant  for  quiet 
enjoyment,  which  in  words  expressly  extended  to  all  man- 
kind. (*)It  was  held  by  three  Judges  against  one,  that  by 
construction  the  covenant  for  quiet  enjoyment  was  re- 
strained to  persons  claiming  under  the  seller,  and  this 
case  was  distinguished  from  Howell  v.  Richards,  on  the 
ground  that  there  the  covenant,  respecting  incumbrances, 
contained  words  as  general  as  the  words  of  the  preceding 
covenant  for  quiet  enjoyment,  with  one  single  exception, 
viz.  the  chief-rent,  which  was  not  an  act  or  default  of  the 
party,  or  of  any  claiming  under  him  :  this  exception, 
therefore,  confirmed  the  generality  of  all  the  other  words. 

Perhaps  we  should  in  this  place  notice  the  case  of 
Barton  v.  Fitzgerald(y).  It  arose  upon  covenants  in  an 
assignment  of  a  lease.  The  lease  was  recited  to  be  for 
the  term  of  ten  years,  and  the  seller  assigned  the  estate  to 

(«)  Nind  V.  Marshall,  1  Brod.  &  Bing.  319  ;  3  Moo.  703  ;  and  see 
P'oord  V.  Wilson,  8  Taunt.  643  ;   2  Moo.  592. 
{v)    15  East,  530  ;  see  3  Barn.  &  Adolph.  195. 

(*97) 


no 


OF  THE  CONSTRUCTION  OF 


the  purchaser  for  the  residue  of  that  term.  The  covenants 
were,  first,  the  common  covenant,  that  the  seller  had  done 
no  act  to  incumber,  except  an  under-lease  ;  2dly,  "  and 
also,"  that  the  lease  was  subsisting,  and  not  become  void 
or  voidable ;  3dly,  for  quiet  enjoyment  against  the  act  of 
the  seller  ;  and  lastly,  for  further  assurance  of  the  seller 
during  the  residue  of  the  term.  It  appeared  that  the 
lease  was  for  ten  years,  if  a  person  should  so  long  live, 
and  he  died  after  the  assignment,  but  before  the  expira- 
tion of  the  ten  years,  by  effluxion  of  time.  And  t^e 
Court  of  King's  Bench  held,  that  the  second  covenant 
was  general  and  unlimited,  and  that  by  the  death  of  the 
cestui  que  vie,  the  purchaser  had  a  good  right  of  action. 
The  Judges  relied  principally  on  the  recital.  The  excep- 
tion of  the  under-lease,  which  was  for  a  term  absolute, 
imported,  they  thought,  that  the  seller  had  a  right  to 
incumber  absolutely  for  the  term  stated,  and  they  were  of 
opinion,  that  all  the  other  covenants  would  be  operative, 
though  the  second  were  construed  to  be  absolute.  This 
(*)case,  it  will  be  observed,  depended  upon  very  particu- 
lar circumstances  ;  independently  of  ^^  hich  it  should  seem, 
that  the  covenant  upon  which  the  purchaser  recovered 
would  have  been  restrained  by  the  other  covenants. 

5.  Butvvhere  the ^r^/ covenant  is  general,  a  subsequent 
limited  covenant  will  not  restrain  the  generality  of  the 
preceding  covenant,  unless  an  express  intention  to  do  so 
appear,  or  the  covenants  be  inconsistent(316). 

Thus  in  Gainsford  v.  Grifiith(a'),  on  an  assignment  of 
a  leasehold  estate,  the  vendor  covenanted  that  the  lease 
was  a  good,  certain,  perfect  and  indefeasible  lease  in  the 
law,  and  so  should  remain  during  the  residue  of  the  term, 

(x)  1  Saund.  58  ;  1  Sid.  328.  See  2  Bos.  &  Pull,  23,  25 ;  1 
Brod.  &  Bing.  331  ;  3  Moo.  723. 


(316)   See  Cole  v.  Hawes,  2  Johns.  Cas.  203. 

(*98) 


COVENANTS  FOR  TITLE.  ||| 

and  that  the*  purchaser,  his  executors,  administrators  and 
assigns,  should  quietly  enjoy  the  premises  without  any 
let,  denial,  &c.  by  the  vendor,  his  executors  or  assigns; 
and  acquitted  or  otherwise  saved  harmless  of  all  incum- 
brances committed  by  the  vendor.  And  it  was  holden, 
that  the  generality  of  the  preceding  covenant  was  not 
restrained  by  the  latter  covenant. 

And  in  Norman  v.  Foster,  Lord  C.  J.  Hale  said, — If 
I  covenant  that  I  have  a  lawful  right  to  grant,  and  that 
you  shall  enjoy,  notwithstanding  any  claiming  under  me ; 
these  are  two  several  covenants,  and  the  first  is  general, 
and  not  qualified  by  the  second.  And  to  this  Wylde,  J. 
agreed,  and  he  said,  that  one  covenant  went  to  the  title, 
and  the  other  to  the  possession (y). 

So  in  the  late  case  of  Hesse  v.  Stevenson (2:),  where, 
on  an  assignment  of  certain  shares  of  a  patent  right,  the 
assignor  covenanted,  that  he  had  good  right,  &c.  to  con- 
vey the  shares,  and  that  he  had  not  by  any  means  directly 
or  indirectly  forfeited  any  right  or  authority  he  ever  had 
or  might  have  had  over  the  same,  it  was  decided  that  the 
(*)generality  of  the  first  covenant  was  not  restrained  by 
the  latter  covenant.  Lord  Alvanley  said,  that  the  cove- 
nant, instead  of  being  framed  in  the  usual  and  almost  daily 
words,  where  parties  intend  to  be  bound  by  their  own 
acts  only,  viz.  "  for  and  notwithstanding  any  act  by  him 
done  to  the  contrary,"  omitted  them  altogether.  The 
omission  of  these  words  was  almost  of  itself  decisive. 
The  attention  of  the  purchaser  was  not  called  by  any 
words  to  the  intent  of  the  vendor  to  confine  his  covenant 
to  his  own  acts.  The  Court  ought  not  to  indulge  parties 
in  leaving  out  words  which  are  ordinarily  introduced, 
and  by  which  the  real  meaning  of  the  parties  might  be 
plainly  understood. 

(y)   1  Mod.  101. 

(z)   3  Bos.  &  Pull.  665. 

(*99) 


112 


OF  THE  CONSTRUCTION  OF 


6.  In  Milner  v.  Horton(«),  where  the  covenants  in  a 
conveyance  were,  1.  for  a  good  title  ;  2.  right  to  convey  ; 
3.  for  quiet  enjoyment,  restricted  to  the  sellers  and  per- 
sons claiming  under  them  ;  4.  and  that  free  from  incum- 
brances by  the  sellers  and  persons  claiming  under  them  ; 
the  Court  of  Exchequer  held,  that  it  was  the  evident 
intention  of  the  sellers  to  bind  themselves  by  the  two 
first  covenants,  that  the  vendees  should  have  a  good 
estate  in  fee  simple,  so  far  as  rested  in  them,  and  therefore 
considered  them  qualified  by  the  subsequent  covenants. 
But  in  Smith  v.  Compton(6),  that  case  was  over-ruled. 
In  the  last  case  the  deed  was  a  common  conveyance 
under  a  power,  the  creation  of  which  was  recited  in  the 
usual  way.  The  covenants  by  the  seller  were,  1.  that 
the  power  was  in  full  force  ;  2.  and  that  he  had  good 
right  to  appoint  and  convey  ;  3.  and  further  for  quiet 
enjoyment  against  the  seller  or  any  person  or  persons 
claiming  or  to  claim  by,  from  or  under  or  in  trust  for 
him ;  4.  and  that  free  from  incumbrances  made  by  the 
seller,  or  any  other  person  or  persons  claiming  or  to  claim 
(*)by,  from,  through,  under  or  in  trust  for  him  ;  and  5.  for 
further  assurance  by  the  seller,  and  all  persons  claiming 
or  to  claim  by,  from  or  under  or  in  trust  for  him ;  and  it 
was  determined  that  the  second  covenant  for  right  to 
convey  was  absolute  and  not  qualified  by  the  subsequent 
covenants.  The  Court  said,  that  looking  at  all  the  cases 
which  were  cited  for  the  defendants,  there  was  only  one, 
Milner  v.  Horton,  where  a  general  covenant  had  been 
held  to  be  qualified  in  the  manner  here  contended  for, 
unless  there  appeared  something  to  connect  it  with  a  re- 
strictive covenant,  or  unless  there  were  words  in  the 
covenant  itself  amounting  to  a  qualification.  It  was  said, 
that  an  absolute  covenant  for  title  was  inconsistent  with 

(a)  M'Clel.  647. 

(6)  3  Barn.  &  Adolph.  189.. 

(*100) 


COVENANTS  FOR  TITLE. 


113 


a  qualified  one  for  quiet  enjoyment  :  the  Court  was  not 
sure  that  that  was  so  generally  ;  but  that  at  any  rate  was 
an  instrument  of  a  particular  nature.  It  began  by  a  state- 
ment of  the  specific  power  vested  in  the  seller,  for  the 
disposal  of  the  premises,  "which  was  followed  by  a  cove- 
nant that  the  power  had  not  been  executed,  and  by  other 
special  covenants,  which,  in  a  deed  so  stating  the  vendor's 
title,  might,  not  inconsistently,  be  introduced  at  the  same 
time  that  the  vendor  covenants  generally  for  right  and 
power  to  convey.  With  one  exception,  there  was  no  case 
where  a  general  covenant  had  been  held  to  be  qualified 
by  others,  unless  in  some  way  connected  with  them. 
The  Court  had  considered  Milner  v.  Horton  a^ain  since 
the  argument,  and  they  could  not  feel  themselves  bound 
by  its  authority  :  they  came  therefore  to  this  conclusion, 
that  the  covenant  declared  upon,  being  unqualified  in 
itself,  and  unconnected  with  any  words  in  the  qualified 
covenants,  must,  in  a  court  of  lav/,  be  regarded  as  an 
absolute  covenant  for  title. 

7.  And  in  cases  of  this  nature,  as,  on  the  one  hand, 
"  ■  a  subsequent  limited  covenant  does  not  restrain  a  pre- 
ceding general  covenant,  so,  on  the  other  hand,  a  preced- 
ing (*)general  covenant  will  not  enlarge  a  subsequent 
limited  covenant. 

Thus,  in  Trenchard  v.  Hoskins(c),  a  person  being 
seised  of  an  estate  granted  under  letters  patent,  conveyed 
it  to  a  purchaser,  and  in  the  conveyance  the  grant  from 
the  Crown  was  recited,  and  the  title  was  deduced  from 
the  grantee  to  the  vendor,  who  entered  into  covenants, 
first,  that  he  was  seised  in  fee  ;  secondly,  that  he  had 
good  power  to  convey  ;  and  thirdly,  that  there  was  no 
reversion  in  the  Crown,  notivithstanding  any  act  done  by 
him.  In  grants  of  lands  by  the  Crown,  it  is  usual  to 
reserve  a  reversion  which  the  grantee  cannot  bar.     After 

(c)  Winch,  91  ;    1  Sid.  328.     See  2  Bos.  &  Pull.  19. 

VOL.   11.  15  (*101) 


114  ^^  THE  CONSTRUCTION  OF 

great  difference  of  opinion  on  the  subject,  it  seems  to 
have  been  decided,  that  the  restrictive  words  to  the  last 
covenant  did  not  extend  to  the  two  preceding  ones ;  the 
Court  presuming  the  intention  to  be,  that  the  vendor 
should  enter  into  an  absolute  covenant  for  his  seisin  in 
fee,  in  all  cases  but  one  ;  namely,  that  he  should  not  be 
liable  on  the  objection  of  a  reversion  existing  in  the 
Crown,  unless  that  reversion  appeared  to  have  been 
vested  in  the  Crown  by  his  own  act(<^/). 

8.  Where  the  covenants  are  of  divers  natures,  and 
concern  different  things,  restrictive  words  added  to  one 
shall  not  control  the  generality  of  the  others,  although 
they  all  relate  to  the  same  land(6'). 

Thus,  where  A.  covenanted  that  he  was  seised  in  fee 
notwithstanding  any  act  done  by  him,  and  that  the  lands 
were  of  a  certain  annual  value  ;  the  latter  was  holden  to 
be  an  absolute  covenant,  that  the  lands  were  of  the 
stated  va\ue(f). 

(*)So  in  another  case(^),  where  a  man  covenanted  that 
he  was  seised  in  fee,  notwithstanding  any  act  done  by 
him  or  any  of  his  ancestors ;  and  that  no  reversion  was 
in  the  king  or  any  other  ;  and  that  the  estate  was  of 
a  certain  annual  value  ;  and  that  the  plaintiff  and  his 
heirs  should  enjoy  the  estate  discharged  from  all  incum- 
brances made  by  him  or  any  of  his  ancestors,  it  was 
decided,  that  the  covenant  as  to  value  was  an  absolute 
and  distinct  covenant,  and  had  no  dependence  upon  the 
first  part  of  the  covenant. 

9.  In  the  case  of  Rich  v.  Rich(A),  a  covenant  "  that 
lands  were  of  the  value  of  1000/.  per  annum,  and  so 
should   continue,  notwithstanding   any  act   done  or  to  be 

(d)  See  2  Bos.  &  Pull.  25, per  Lord  Eldon. 

(e)  See  3  Lev.  47. 

(/)  Hughes  V.  Bennett,  Cro.  Car.  495 ;   1  Jones,  403,  S.  C. 
{g)   Crayford  v.  Ciayford,  do.  Car.  106. 
(A)   Cro.  Fliz.  43. 
(*102) 


COVENANTS  FOIl  TITLE.  -j  i  r 

done   by  the  covenantor,"  was  holden  to   be  only  a  cove- 
nant that  the  covenantor  had  not  lessened  the  value. 

10.  This  subject  must  not  be  closed  without  observing, 
that  if  general  covenants  are  entered  into  contrary  to  the 
intention  of  the  parties,  equity  will,  on  sufficient  proof, 
correct  the  mistake  in  the  same  manner  as  errors  are 
corrected  in  marriage  articles,  and  will  relieve  against 
any  proceedings  at  law  upon  the  covenants,  as  they 
originally  stood(2). 


III.  1.  It  still  remains  to  say  a  few  words  concerning 
a  purchaser's  remedy  under  covenants  for  the  title  ;  and 
first,  if  he  be  evicted,  and  the  eviction  is  within  the 
covenant,  he  may  bring  an  action  at  law  for  damages. 

2.  But,  as  we  have  already  seen,  unless  the  eviction 
be  within  the  covenant,  or  there  was  a  fraudulent  con- 
cealment of  the  defect,  a  purchaser  cannot  recover  the 
(*)purchase-money,  in  case  of  eviction,  either  at  law  or  in 
equity  (/c). 

3.  If  the  title  prove  bad,  a  purchaser  may  have  recourse 
to  law  for  damages,  or  if  the  defect  can  be  supplied  by  the 
vendor,  he  may  file  a  bill  in  equity  for  a  specific  perform- 
ance of  the  covenant  for  further  assurance.  And  a  vendor 
who  has  sold  a  bad  title,  will,  under  a  covenant  for  fur- 
ther assurance,  be  compellable  to  convey  any  title  which 
he  may  have  acquired  since  the  conveyance,  although 
he  actually  purchased  such  title  for  a  valuable  considera- 
tion(/).  But  after  a  conveyance  executed,  a  bill  cannot 
be  filed  for  compensation(317). 

(t)  Coldcotti).  Hill,  1  Cha.  Ca.  15;  1  Sid.  328,  cited;  Fielder  v. 
Studly,  Rep.  temp.  Finch,  90.  See  2  Bos.  &  Pull.  26  ;  3  Bos.  &  Pull. 
575  ;  and  supra,  Vol.  1,  p.  161. 

(k)  Supra,  Vol.  1,  p.  654. 

(/)  Taylor  r.  Debar,  1  Cha.  Ca.  274;  2  Cha.  Ca.  212.  See  Sea- 
bourne  V.  Powell,  2  Vern.  11  ;  and  seech.  16,-s.  10,  infra. 


(.317)  See  M' Williams  v.  .Yisleij,  2  Serg.  &  Rawle,  515. 

(M03) 


j  !/>  OF  THE  CONSTRUCTION  OF 

4.  It  seems  that,  under  a  covenant  for  further  assurance, 
a  purchaser  may  require  a  dujDlicate  of  the  conveyance 
to  be  executed  to  him,  in  case  he  is  compelled  to  part 
with  the  original  to  a  purchaser  from  him  of  part  of  the 
estate(m)  ;  but  it  may  be  doubted  whether  he  can  require 
a  covenant  to  produce  the  title-deeds  if  the  purchase  was 
completed  without  such  a  covenant(w). 

5.  So  if  the  vendor  become  bankrupt,  the  purchaser 
may  call  upon  his  assignees  to  execute  further  assurances, 
although  the  vendor  was  only  tenant  in  tail,  and  did  not 
suffer  a  recovery(o)(I). 

6.  But  if  the  original  contract  was  not  fit  to  be  exe- 
cuted by  equity,  the  Court  will  not  interfere  in  behalf  of 
the  purchaser,  leave  him  to  but  his  remedy  at  law(p)(318). 
And  if  the  title  prove  bad,  and  the  purchase  was  made  at 
(*)a  great  undervalue,  equity  will  relieve  the  vendor 
against  an  action  on  the  covenants  for  title,  allowing  the 
purchaser  his  purchase-money,  with  interest  only,  he  dis- 
counting the  mesne  profits(^). 

7.  An  action  for  breach  of  a  covenant  for  title(r)  will 
not  be  barred  by  the  bankruptcy  and  certificate  of  the 
covenantor,  although  the  cause  of  action  accrued  before 
the  bankruptcy. 

8.  An  action  of  covenant  did  not  lie  against  a  devisee 
upon  the  statute  of  fraudulent  devises(5).     No  such  re- 

(m)  Napper  v.  Lord  Allington,  1  Eq.  Ca.  A.br.  166,  pi.  4. 
(»)  Fain  v.  Ayers,  2   Sim.  &  Stu.  533.     See   Hallett  v.  Middleton, 
1  Russ.  243. 

(0)  Pye  V.  Daubuz,  3  Bro.  C.  C.  596. 
ip)  Johnson  «.  Nott,  1  Vern.  271. 
(q)    Zouch  V.  Swaine,  1  Vern.  320. 

(r)  Hammond  v.  Toulmin,  7  Term  Tep.  612  ;  Mills  v.  Auriol,  1 
Hen.  Blackst.  433. 

(*)  3  W.  &  M.  c.  124  ;  Wilson  v.  Knubley,  7  East,  128. 

(1)  See  now  3  &  4  Will.  4,  c.  74,  s.  55  to  69. 

(318)    See  Sims's  Admr    v,  l/ewis'^s  Exr.  6  Munf.  31. 
(*104) 


COVENANTS  FOR  TITLE. 


117 


medy  lies  at  common  law,  and  therefore,  although  a  ven- 
dor died  seised  of  real  estates,  yet  if  they  were  devised 
by  his  will,  a  purchaser  would  not  have  any  remedy 
against  them,  notwithstanding  that  the  covenants  for  title 
were  broken,  and  there  was  no  other  fund  to  which  he 
can  resort  for  damages.  This  is  now  remedied  by  the 
1  W.  4,  c.  47,  which(i!)  expressly  extends  the  provisions 
of  the  former  statute  to  the  case  of  covenants. 

Lastly,  the  purchaser  is  not  bound  to  give  notice  of  an 
adverse  suit  to  the  covenantor ;  but  if  he  compromise  it, 
may  recover  the  whole  sum  paid  and  his  costs  between  so- 
licitor and  client,  if  the  claim  was  within  the  covenant. 
The  only  effect  of  want  of  notice  in  such  a  case  as  this  is, 
to  let  in  the  party  who  is  called  upon  for  an  indemnity,  to 
show  that  the  plaintiff  has  no  claim  in  respect  of  the  al- 
leged loss,  or  not  to  the  amount  alleged,  that  he  had  made 
an  improvident  bargain,  and  that  the  defendant  might  have 
obtained  better  terms  if  the  opportunity  had  been  given 
to  him.    But  that  must  be  proved(M). 

(0   s.  3  ;  see  3  &  4  W.  4,  c.  104. 

(«)   Smith  V.  Compton,  3  Barn.  &  Aid.  407. 


I   l'8  J 


(*)CHAPTER  XIV. 


OF    THE    PERSONS    INCAPABLE    OF    PURCHASING. 


Under  this  head  we  may  consider,  1st,  Who  are  in- 
capable of  purchasing  absolutely  for  their  own  benefit  by 
the  general  rules  of  law  :  and,  2dly,  Who  are  incapable 
of  purchasing  particular  property,  except  under  particular 
restraints,  on  account  of  the  rules  of  equity. 

SECTION  I. 

Of  Persons  incapable  of  Purchasing  by  the  general 
Rules  of  Law. 


This  incapacity  is  of  three  kinds:  1st,  An  absolute 
incapacity :  2dly,  An  incapacity  to  hold,  although  an 
ability  to  purchase  :  and,  3dly,  An  incapacity  to  pur- 
chase, except  sub  modo. 

I.  First  then,  With  respect  to  persons  who  are  altoge- 
ther incapable  of  purchasing. 

The  parishioners,  or  inhabitants  of  any  place,  or  the 
churchwardens,  are  incapable  of  purchasing  lands(a)  by 
those  names. 

But  it  seems  that  in  London  the  parson  and  church- 
Co)  Co.  Litt.  3  a.  M 
(*105)  1 


OF  THE  PERSONS  INCAPABLE  OF  PURCHASING. 


119 


wardens  are  a  corporation  to  purchase  lands(6).  And 
churchwardens  and  overseers  are  enabled,  by  statute 
(*)law(c),  to  purchase  a  workhouse  for  the  poor,  but  this 
is  merely  as  trustees,  and  does  not  affect  the  general  rule 
of  law. 


II.  With  respect  to  persons  who  are  capable  of  pur- 
chasing, but  incapable  of  holding :   They  are, 

1st,  Aliens  :  for  although  they  may  purchase,  yet  it  can 
only  be  for  the  benefit  of  the  king :  and  upon  an  office 
found,  the  king  shall  have  it  by  his  prerogative(rf)(319). 
And  it  seems  that  an  alien  cannot  protect  himself  by 
taking  the  conveyance  in  the  name  of  a  trustee,  for  the 
mischief  is  the  same  as  if  he  had  purchased  the  lands 
himself(e)(320). 

But  if  an  alien  be  made  a  denizen  by  the  king's  letters 
patent,  he  is  then  capable  of  holding  hnds(f)  purchased 
after  his  denization. 

(6)  Warner's  case,Cro.  Jac.  532  ;  Hargrave's  n.(4)  to  Co.  Litt.  3  a. 
(c)   9  Geo.  1,  c.  7,  s.  4.  ^ 
{d)   Co.  Litt.  2  b. 

(e)  The  King  v.  Holland.  All.  14  ;  Sty.  20,  40,  76,  84,  90,  94  ;  1 
Ro.  Abr.  194,  pi.  8. 

(/)   Co.  Litt.  2  b.  -  - 

(319)  See  Orr  v.  Hodgson,  4  Wheat.  460.  Jackson  v.  Lunn,  3 
Johns.  Cas.  109,  113.  Storer  v.  Baison,  8  Mass.  Rep.  445.  Clifton 
V.  Halg's  Exrs.  4  Des.  335.  Jackson  v.  Beach,  1  Johns.  Cas.  399. 
Fairfaxes  Dev.  v.  /TwH/er's  Les.  7  Cranch,  603.  Craig  v.  Leslie,  3 
Wheat.  663,  689.  Craig-  v.  Radford,  3  Wheat.  694.  Sheaffe  v. 
OWeal,  1  Mass.  Rep.  266.  Fox  v.  Soulhack,  12  Mass.  Rep.  143. 
J\TCreerifs  Les.  v.  Wilson,  4  Har.  &  M'Hen.  412.  Doe  v.  Ho7iii- 
6/ea,  2  Hayw.  37.  Hunts.  Warnicke,  H^xdin,  61.  Where  a  person 
dies,  leaving  issue,  who  are  aliens,  they  shall  not  be  deemed  his  heirs  at 
law  ;  but  the  estate  will  descend  to  the  next  of  kin.  Orr  v.  Hodgson, 
4  Wheat.  461.  See  further,  as  to  this  point,  Jackson  v.  Jackson,  7 
Johns.  Rep.  214. 

(320)  See  Craig  v.  Leslie,  3  Wheat.  676.  et  seq, 

(*106) 


120  ^^  '^^^  PERSONS  INCAPABLE 

And  it  seems,  that  if  an  alien  purchase  lands,  and  be- 
fore office  found  the  king  make  him  a  denizen  hy  letters  pa- 
tent, and  confirm  his  estate,  the  confirmation  will  be  good  ; 
as  the  land  is  not  in  the  king  till  office  found(g)(321). 

2dly,  Persons  who  have  committed  felony  or  treason, 
or  have  been  guilty  of  the  offence  of  prcemunire,  and 
afterwards  purchase  lands,  and  then  are  attainted  ;  for 
they  have  ability  to  purchase,  although  not  to  hold ;  and 
for  that  reason  the  lord  of  the  fee  shall  have  the  lands ; 
but  if  they  purchase  after  they  are  attainted,  they  are 
then  in  the  same  situation  with  aliens,  and  the  lands  must 
go  to  the  king(A). 

Lastly,  Corporations  sole  or  aggregate,  either  ecclesias- 
tical or  temporal,  cannot  hold  lands  without  due  license 
(*)for  that  purpose(/c)(322)  :  and  the  lord  of  the  fee,  or  in 
default  thereof  within  the  time  limited  by  the  statutes,  the 
king  may  enter(/). 


III.  With  respect  to  persons  capable  of  purchasing 
sub  modo :  They  are, 

1st,  Infants  under  the  age  of  twenty-one  years,  who 
may  purchase,  and  at  their  full  age  may  bind  themselves 
by  agreeing  to  the  purchase  ;  or  may  wave  the  purchase 
without  alleging  any  cause  for  so  doing  :  and  if  they  do 

(g)   Goulds.  29,  pi.  4. 

(h)  Co.  Liu.  2  b.  See  Rex  v.  Inhab.  of  Haddenham,  15  East, 
463. 

{k)   Co.  Litt.  99  a. 
(/)  Co.  Litt.  2  b. 

(321;  See  Jackson  v.  Beachy  1  Johns.  Cas.  399.  See  also,  JWeeks 
V.  Richbourg,  1  Rep.  Con.  Ct.  411.  Trustees  of  Louisville  v.  Gray, 
1  Litt.  146.  Elmendorfv.  Carmichael,  3  Litt.  475.  Jackson  v.  L/unn, 
3  Johns.  Cas.  120. 

(322)  See  Jackson  v.  Hartwell,  8  Johns.  Rep.  330.  2d  edit.  Jack- 
son V.  Hammond,  2  Caines'  Cas.  in  Error,  337.  Parish  in  Brunswick 
V.  Dunning,  7  Mass.  Rep.  445. 

(*107) 


OF  PUUCHASING.  ]21 

not  agree  to  the  purchase  after  tlieir  lull  age,  their  heirs 
niaj  wave  the  purchase  in  the  same  manner  as  the  infants 
themselves  could  have  clone(m)(323). 

2dlj,  Femes  covert,  who  are  capable  of  purchasing, 
but  their  husbands  may  disagree  thereunto,  and  divest 
,  the  whole  estate,  and  maintain  trover  for  the  purchase- 
money(«)(324).  If  a  husband  neither  agree  nor  disagree, 
-the  purchase  by  his  wife  will  be  effectual ;  but  after  his 
death  she  may  wave  the  purchase,  without  giving  any 
reason  for  so  doing,  although  her  husband  may  have 
agreed  to  it.  And  if,  after  her  husband's  death,  she  do  not 
agree  to  it,  her  heirs  may  wave  it(o). 

A  feme  covert  may,  however,  purchase  lands  pursuant 
to  an  authority  given  by  her  husband,  and  he  cannot 
avoid  it  afterwards(p). 

3dly,  Lunatics  or  idiots,  who  are  capable  of  purchasing  ; 
but  although  they  recover  their  senses,  cannot  themselves, 
it  should  seem,  wave  the  purchase(9)(325) ;  and  (*)if 
they  recover  and  agree  thereunto,  their  heirs  cannot  set  it 
aside. 

If  they  die  during  their  lunacy  or  idiocy,   then   their 

(m)  Ketsey's  case,  Cro.  Jac.  320  ;  1  Ro.  Abr.  731,  (K.)  ;  Co.  Litt. 
2  b.     See  Holmes  v.  Blogg,  8  Taunt.  508 ;   2  Moo.  552. 

(n)  Garbrand  v.  Allen,  1  Lord  Raym.  224.  See  Francis  v.  Wig- 
zell,  1  Madd   258. 

(o)   Co.  Litt.  3  a ;   Barnfather  v.  Jordan,  Dougl.  452,  2d  edit. 

(p)   Garbrand  v.  Allen,  nhi  sup. 

{q)   On  this  point  see  2  Blackst.  Comm.  291,  7th  edit 

(323)  See  Jackson  v.  Todd,  6  Johns.  Rep.  257.  Jackson  v.  Cai-- 
penier,  11  Johns.  Rep.  539.     Jackson  \.  Biirchin,  14  Johns.  Rep.  124. 

Rogers  v.  Hurd,  4  Day,  57. 

(324)  See  Baxter  v.  Smith,  6  Birin.  427. 

(325)  See  Webster  \.  Woodford,  3  Day,  100,101.  The  English 
doctrine  that  a  person  non  compos  mentis,  shall  not  be  admitted  to  stulti- 
fy himself,  seems  not  to  be  acknowledged  in  this  country.  Id.  See 
Millison  V.  JVicholson,  Cam.  &  Nor.  499. 

VOL.   II.  16  (*108) 


122 


OF  THE  PERSONS  INCAPABLE 


heirs  may  avoid  the  purchase(r)(326).  And  as  the  king 
has  the  custody  of  idiots,  upon  an  office  found  he  may 
annul  the  purchase(5)  :  and  after  the  lunatic  is  found  so 
by  inquisition,  his  committee  may  vacate  the  purchase(i). 

Lastly,  under  this  head  we  might  formerly  have  ranked 
papists  and  persons  professing  the  popish  religion(?f), 
w^ho  had  neglected  to  take  the  oath  prescribed  by  the 
31  Geo.  3,  c.  32(x).  For  a  papist  took  for  the  benefit 
of  his  protestant  next  of  kin  till  his  conformity ;  for  the 
benefit  of  himself  after  his  conformity  ;  and  for  the  be- 
nefit of  his  heir  after  his  death — Nay,  for  the  benefit  of 
himself,  during  his  life  and  non-conformity,  by  reason  of 
the  action  which  was  given  him  ;  and  might  therefore  be 
said  to  be  capable  of  purchasing  sub  modo(y). 

But  by  the  10  Geo.  4,  c.  7,  s.  23,  it  was  enacted,  that 
after  the  passing  of  that  Act  no  oath  or  oaths  should  be 
tendered  to  or  required  to  be  taken  by  his  Majesty's  sub- 
jects professing  the  Roman-catholic  religion,  for  enabling 
them  to  hold  or  enjoy  any  real  or  personal  property,  other 
than  such  as  might  by  law  be  tendered  to  and  required  to 
be  taken  by  his  Majesty's  other  subjects. 

(r)   Co.  Litt.  2  b. 
(s)   Co.  Litt.  247  a. 

(t)  Clerk  by  Committee  v.  Clerk,   2  Vern.  412;   Addison   by  Com- 
mittee V.  Dawson,  2  Vern.  678  ;   Ridler  v.  Ridler,  1  Eq.  Ca.  Abr.  279. 
(tt)  See  11  &  12  W.  3,  c.  4  ;  Michaux  v.  Grove,  2  Atk.  210. 
(x)  See  43  Geo.  3,  c.  30. 
iy)   See  Mallom  v.  Bringloe,  Willes,  75  ;   Com.  570,  S.  C. 

(326)   See  Webster  \.  Woodford,  3  Day,  101. 


OF  PURCHASING. 


123 


(*;SECTION    II. 
Of  purchases  by  Trustees,  Agents,  ^c. 


We  come  now  to  persons  who  are  incapable  of  pur- 
chasing particular  property,  except  under  particular  re- 
straints, on  account  of  the  rules  of  equity. 

I.  It  may  be  laid-  down  as  a  general  proposition,  that 
trustees(z)(327)  (unless  they  are  nominally  such,  as  trus- 
tees to  preserve  contingent  remainders(a),  agents(6)(328), 
commissioners     of    bankrupts(c),    assignees     of    bank- 

(2)  Fox  V.  Mackreth,  2  Bro.  C.  C.  400  ;  4  Bro.  P.  C  by  Tom- 
lins,  258  ;  Hall  v.  Noyes,  3  Bro.  C.  C.  483  ;  and  see  3  Ves.  jun.  748  ; 
Kellick  V.  Flexny,  4  Bro.  C.  C.  161  ;  Whitcote  v.  Lawrence,  3  Ves. 
jun.  740  ;  Campbell  v.  Walker,  5  Ves.  jun.  678 ;  and  Whitackre  v. 
Whitackre,  Sel.  Cha.  Ca.  13. 

(rt)   See  Parks  r.  White,  11  Ves.  jun.  226. 

(6)  York-Buildings  Company  v.  Mackenzie,  8  Bro.  P.  C.  42  ;  Low- 
ther  V.  Lowther,  13  Ves.  jun.  95.  See  Watt  v.  Grove,  2  Scho.  &  Lef. 
492  ;  Whitcomb  r.  Minchin,  5  Madd.  91  ;  Woodhouse  v.  Meredith,  1 
Jac.  &  Walk.  204. 

(c)  Ex  parte  Bennet,  10  Ves.  jun.  381  ;  ex  parte  Durabell,  Aug.  13, 
1806  ;   Mont,  notes,  33,  cited  ;   ex  parte  Harrison,  1  Buck,  17. 


(327)  See  Green  v.  Winter,  1  Johns.  Ch.  Rep.  26.  Parkisi  v.  Al- 
exander, 1  Johns.  Ch.  Rep.  394.  JVlunro  v.  Allaire,  2  Caines'  Cas.  in 
Error,  183.  Holridge  v.  Gillespie,  2  Johns.  Ch.  Rep.  30.  Davoue  v. 
Fanning,  2  Johns.  Ch.  Rep.  252.  Howell  v.  Baker,  4  Johns.  Ch. 
Rep.  118.  Matthews  v.  Dragaud,  3  Des.  25.  Les.  of  Lazarus  v. 
Brijson,  3  Binn.  54,  59.  Jackson  v.  Van  Dalfsen,  5  Johns.  Rep.  47.  ; 
and  note  a.  p.  48.  JWGuire  v.  JW'Goioen,  4  Des.  486.  Perinj  v. 
Dixon,  4, Des.  504.  in  note.      Moody's  Les.  v.    Vandyke,  4  Binn.  43. 

(328)  See  Parkist  v.  Alexander  ;  Green  v.  Winter,  ut  supra.  But' 
ler  V.  Haskell,  4  Des.  651.     Howell  v.  Baker,  4  Johns.  Ch.  Rep.  118. 

(*109) 


124 


OF  THE  PERSONS  INCAPABLE 


rupts(£/)(I),  (*)solicitors  to  the  coiimiission(e),  auctioneers, 
creditors  wlio  have  been  consulted  as  to  the  mode  of 
sale(/),  or  any  persons  who,  by  their  connection  with  any 
other  person,  or  by  being  employed  or  concerned  in  his 
affairs,  have  acquired  a  knowledge  of  his  property,)  are 
incapable  of  purchasing  such  property  themselves  ;  except 
under  the  restrictions  which  will  shortly  be  mentioned. 
For  if  persons  having  a  confidential  character  were  per- 

(d)  Ex  parte  Reynolds,  5  Ves.  jun.  707;  ex  parte  Lacey,  6  Ves. 
jun.  625  ;  er  parte  Bage,  4  Madd.  459  ;  ex  parte  Badcock,  1  Mont.  & 
Mac.  23]. 

(e)  Owen  r.  FoulUes,  6  Ves.  jun.  630,  n.^(6)  ;  ex  parte  Linwood  ; 
ex  parte  Churchill,  8  Ves.  jun.  343,  cited;  ex  parte  Bennet,  10  Ves. 
jun.  381  ;  ex  parte  Dumbel!,  Aug.  13,  1806;  Mont,  notes,  33,^cited' 
See  12  Ves.  jun.  372  ;   3  Mer.  200. 

(/)  See  ex  parte  Hughes,  6  Ves.  jun.  617;  Coles  v.  Trecothick,  9 
Ves.  jun.  234  ;    1  Smith's  Rep.  233  ;   Oliver  v.  Court,  8  Price,  127. 

(I)  Lord  Eldon  has  said,  that  the  rule  is  to  be  more  peculiarly  ap- 
plied with  unrelenting  jealousy  in  the  case  of  an  assignee  of  a  bank- 
rupt ;  adding,  that  it  must  be  understood,  that,  whenever  assignees 
purchase,  they  must  expect  an  inquiry  into  the  circumstances.  See 
6  Ves.  jun.  630,  n.  (b)  ;  and  8  Ves.  jun.  346  ;  10  Ves.  jun.  395.  And 
an  assignee  purchasing  the  estate  himself,  or  permitting  his  co-assignee 
to  purchase  it,  will  be  a  sufficient  cause  of  removal.  Ex  parte  Rey- 
nolds, 6  Ves.  jun.  707. 

If  an  assignee  purchase  an  estate  .sold  under  the  commission,  and 
upon  an  accidental  increase  in  the  value  of  the  property,  he  afterwards 
sells  it  at  a  considerable  advance,  he  cannot,  upon  discovering  that  he 
ought  not  to  have  been  a  purchaser,  pay  the  difference  of  the  sales  to 
the  general  fund  of  the  creditors.  Ex  parte  Morgan,  Feb.  24,  1806; 
Mont,  notes,  31.  And  where  upon  the  sale  of  a  bankrupt's  estate  by 
auction,  in  two  lots,  both  of  the  lots  were  bought  in  by  the  assignee 
without  the  consent  of  the  creditors,  the  Lord  Chancellor,  although 
there  was  a  protit  on  the  resale  of  one  lot,  which  was  more  than  equal 
to  the  loss  on  the  resale  of  the  other,  so  that  the  balance  was  in  favor 
of  the  estate,  held  the  assignee  liable  to  make  good  the  loss  on  the  lot 
which  was  resold  at  a  less  sum,  without  permitting  him  to  set  off  the 
profit  gained  by  the  resale  of  the  other  lot.  Ex  parte  Lewis,  1  Glyn. 
&  Jame.  69.     Ex  parte  Buxton,  j7'.  dbo. 

(*U0) 


OF  PURCHASING. 


125 


mitted  to  avail  themselves  of  any  knowledge  acquired  in 
that  capacity,  they  might  be  induced  to  conceal  their  infor- 
mation, and  not  to  exercise  it  for  the  benefit  of  the  per- 
sons relying  on  their  integrity.  The  characters  are  incon- 
sistent. Emptor  emit  quam  minimo  potest,  venditor  vendit 
quam  maxima  potest(I)(329). 


(I)  This  principle  has  been  attended  to  in  the  general  inclosure  act, 
which  renders  commissioners  incapable  of  purchasing  any  estate  in  the 
parish  in  which  the  lands  are  intended  to  be  inclosed,  either  in  the 
names  of  themselves  or  others,  until  five  years  after  the  date  and  exe- 
cution of  the  award,  41  Geo.  3,  c.  109,  s.  2, 

(329)  See  Daroue  v.  Fanning,  2  Johns.  Ch.  Rep.  257  to  271, 
where  the  English  decisions  are  reviewed.  Green  v.  Winter,  1 
Johns.  Ch.  Rep.  36.  Evertson  \.  Tappen,  5  Johns.  Ch.  Rep.  497. 
Hatoley  v.  J^Iancins,  7  Johns.  Ch.  Rep.  174. 

The  sale  to  a  trustee  or  agent  is  not  absolutely  void  ;  but  may  always 
be  avoided  by  the  cestin  que  trust,  or  by  the  principal,  unless  long  ac- 
quiescence, with  knowledge  of  their  rights,  warrants  a  presumption  that 
they  approved  and  ratified  the  sale.  And  this  extends  to  the  case  of  a 
guardian  under  the  act  for  the  partition  of  lands  ;  for  he  who  undertakes 
to  act  for  another,  shall  not,  in  the  same  matter  act  for  himself.  The 
case  of  Jackson  v.  Woolsey,  11  Johns.  446,  does  not  impugn  this 
principle  ;  for  in  that  case  it  was  not  the  wards  who  were  endeavoring 
to  set  aside  the  sale  to  their  guardian  ;  and  no  one  but  the  wards,  or  a 
cestui  que  trust  can  impeach  the  sale,  unless  fraudulent.  xV  trustee  or 
guardian,  however,  may  purchase  under  a  special  decree  of  the  court  of 
Chancery ;  and  in  this  way  he  may  acquire  a  good  title.  So,  the 
ward  may  confirm  the  sale  by  delay.  These  principles  were  recognized 
in  Gallatian  v.  Cunningham,  8  Cowen,  361,  (in  error)  where  it  was 
decided  that  a  purchaser  resting  his  claim  in  equity  on  the  fact  of  being 
a  bona  fide  purchaser,  was  bound  to  deny  all  knowledge  of  the  facts 
charged  ;  otherwise  evidence  will  not  be  admitted  to  show  their  igno- 
rance of  the  fraud  :  it  is  for  the  person  thus  claiming,  to  maintain  that 
he  was  such  purchaser  without  notice  : — and  if  he,  or  those  claiming 
under  him,  do  not  do  so,  witnesses  shall  not  do  it  for  them.  If  a  purcha- 
ser, says  Chancellor  Kent,  in  the  case  of  Denning  v.  Smith,  3  J.  Ch. 
R.  346,  "  wishes  to  rest  his  claim  on  the  fact,  he  must  deny  notice,  al- 
though it  be  not  charged  in  the  bill.  He  must  deny  every  circumstance 
from  which  notice  could  be  inferred."  And  in  the  the  language  of 
senator  Colden  in  the  case  cited  from  Cowen,  "  He  must  do  this,  be- 


126  ^^  ^^^  PERSONS  INCAPABLE 

The  able  counsel  for  the  appellants  in  York-Buildings 
Company  v.  Mackenzie(g), .  strongly  observed,  that  the 
ground  on  which  the  disability  or  disqualification  rests,  is 
(*)no  other  than  that  principle  which  dictates,  that  a  per- 

(g)  8  Bio.  P.  C.  63,  where  the  authorities  in  the  civil  law  are  col- 
lected. 

cause  want  of  notice  is  an  essential  part  of  the  purchaser's  title ;  and 
unless  he,  or  those  claiming  under  him,  aver  that  he  had  not  notice, 
the  title  is  defective.  I  wish  to  establish  as  a  principle,  and  mean  to 
do  it,  so  far  as  my  opinion  can  establish  any  thing,  that  if  a  guardian 
purchases  the  estate  of  his  ward,  without  the  special  permission  of  a 
court,  the  sale  may  be  set  aside  while  the  property  is  in  the  hands  of  the 
guardian,  on  the  application  of  the  ward,  within  a  reasonable  time  ;  and 
if  the  guardian  makes  a  conveyance  to  another  person,  the  property 
may  be  claimed  in  the  hands  of  such  person,  unless  the  holder  places 
himself  in  such  a  situation,  as  that  a  court  of  equity  my  consider  him  a 
bona  fide  purchaser  without  notice." 

The  law  has  wisely  forbidden  executors  and  trustees  from  acting 
in  the  double  capacity  of  sellers  and  purchasers  ;  especially  in  a  case 
where  the  executor  had  authority  by  will  to  sell :  and  he  sold  at  private 
sale  for  the  purpose  of  enabling  a  third  person  to  reconvey  the  estate  to 
the  executor.  The  transaction  is  a  legal  fraud  ;  and  the  purchaser  is 
chargeable  with  notice  of  the  fraud.  The  title  may  be  impugned  in  the 
hands  of  such  a  purchaser.  Such  a  deed  is  not  absolutely  void  ; 
and  therefore,  no  party  to  the  deed,  or  others  claiming  under  them, 
mjiy  be  allowed  to  repudiate  it  ;  neither  can  strangers  avail  them- 
selves of  such  an  objection.  It  is  voidable  by  the  cestui  que  trust  or 
his  heirs.  Den  v.  Wright,  2  Hals.  R.  175.  And  a  purchaser  with 
notice  is  in  no  better  situation  than  the  person  from  whom  he  de- 
rives his  title,  and  is  bound  by  the  same  equity;  Hughes  v.  Edwards,  9 
Wheat.  499. 

The  principle  of  courts  of  equity  might  be  applied  to  the  case  of  an 
executor  or  administrator  purchasing,  to  make  the  purchaser  hold  as 
trustee  for  the  heirs,  and  to  compel  him  to  sell  the  land  and  to  pay  the 
excess  obtained  above  what  he  gave  for  it ;  but  that  proceeds  on  the 
ground  that  the  conveyance  to  the  trustee  was  not  void,  but  voidable  by 
the  persons  interested  in  the  estate.  If  they  are  satisfied  with  the  con- 
veyance, the  validity  of  it  cannot  be  impeached  by  a  stranger.  Har- 
rington V.  Brown,  5  Pick.  619  :  Den  v.  M'Knight,  6  Hals.  585  :  Fay 
V.  Hunt,  5  Pick.  398. 

(*111) 


OF  PURCHASING.  i  c)^ 

son  cannot  be  both  judge  and  party.  No  man  can  serve 
two  masters.  He  that  is  intrusted  with  the  interest  of 
others  cannot  be  allowed  to  make  the  business  an  object 
of  interest  to  himself;  because,  from  the  frailty  of  nature, 
one  who  has  the  power  will  be  too  readily  seized  with  the 
inclination  to  use  the  opportunity  for  serving  his  own 
interest  at  the  expense  of  those  for  whom  he  is  intrusted. 
A  creditor  having  taken  out  execution  may  buy  the 
estate  sold  under  the  execution (/t).  Indeed,  this  was 
never  doubted  where  the  transaction  was  a  fair  one.  And 
the  rule  has  never  been  applied  to  a  purchase  by  mort- 
gagee from  the  mortgagor,  and  it  is  to  be  hoped  that 
it  never  will.  In  Ireland,  many  leases  granted  by  mort- 
gagors to  mortgagees  were  set  aside  by  Lord  Redesdale, 
on  the  ground  that  the  transaction  was  usurious,  although 
that  learned  Judge's  successors  have  not  been  inclined  to 
carry  the  principle  as  far  as  he  did.  In  one  case(i)  it 
was  objected  that  the  decision  might  tend  to  impeach 
dealings  between  mortgagor  and  mortgagee  for  a  sale  of 
the  equity  of  redemption(330).  But  Lord  Redesdale  said, 
that  to  this  a  good  answer  was  given  at  the  bar.  The 
cases  are  totally  different ;  the  parties  stand  in  a  different 
relation  :  if  there  be  two  persons  ready  to  purchase,  the 
mortgagee  and  another,  the  mortgagor  stands  equally 
betw'een  them  ;  and  if  the  mortgagee  should  refuse  to 
convey  to  another  purchaser,  the  mortgagor  can  compel 
him,  by  applying  the  purchase-money  to  pay  off  the 
mortgage.  It  can  therefore  only  be  for  want  of  a  better 
purchaser,  that  the  mortgagor  can  be  compelled  to  sell  to 
the  mortgagee  :  hut  Courts  vieio  transactions  even  of  that 

{h)   Stratford  v.  Tvvynam,  1  Jac.  418. 

(i)  Webb  V.  Rorke,  2  Scho.  &  Lef.  673  ;  and  see  1  Ball  &  Beatty, 
164  ;  ex  parte  Marsh,  1  Madd.  148;  see  Chambers  v.  Waters,  3  Sim. 
42. 

(330)  See  Holridge  v.  Gillespie,  2  Johns.  Ch.  Rep.  30. 


128  O^  THE  PERSONS  INCAPABLE 

sort  between  mortgagor  and  mortgagee,  with  considerable 
(*)jealousy,  and  will  set  aside  sales  of  the  equity  of  re- 
demption, ivhere,  by  the  influence  of  his  incumbrance,  the 
mortgagee  has  purchased  for  less  than  others  would  have 
given,  and  there  were  circumstances  of  misconduct  in  his 
obtaining  the  purchase. 

Perhaps  the  observation,  that  "  Courts  view  transac- 
tions even  of  that  sort  between  mortgagor  and  mortgagee, 
with  considerable  jealousy,"  puts  the  doctrine  higher  than 
one  should  wish  to  see  it  stand.  A  sale  by  a  mortgagor 
to  a 'mortgagee  stands  on  the  same  principle  as  a  sale  be- 
tween parties  having  no  connection  with  each  other,  and 
can  only  be  impeached  on  the  ground  of  fraud  :  the  mere 
circumstance  that  the  mortgagee  purchased  for  less  than 
another  would  have  given,  would  not  of  itself  be  a  suffi- 
cient ground  to  impeach  a  sale  ;  and  Lord  Redesdale,  in 
stating  that  as  an  ingredient,  adds  also  circumstances  of 
misconduct  in  obtaining  the  purchase.  Where  a  mortga- 
gee sells  under  the  general  order  in  bankruptcyj  it  is  usual 
to  apply  for  leave  for  him  to  bid  at  the  sale,  where  he 
intends  to  do  so.  But  there  he  may  fairly  be  considered 
as  the  seller,  and  he  cannot,  without  the  leave  of  the 
Court,  sustain  the  two  characters  of  seller  and  buyer(A;). 
But  if  a  mortgagee  take  a  conveyance  with  a  power  of 
sale,  he  is  a  trustee  for  sale,  and  as  such  disabled  from 
purchasing(/)(331). 

The  principle  has,  however,  been  extended  to  a  pur- 
chase by  an  attorney  from  his  client,  while  the  relation 
subsists(m)(332). 

{k)  Ex  parte  Du  Cane,.l  Buck,  18.  See  ex  parte  Marsh,  1  Madd. 
148. 

(/)   Downes  r.  Glazebrook,  3  Mer.  200. 

(m)  See  Bellew  v.  Russell,  1  Ball  &  Beatty,  96 ;  9  Ves.  jun.  296  ; 

(331)  But  see  Bergen  v.  Bennett,  1  Caines'  Cas.  in  Error,  1. 

(332)  See  Wendell  v.  Van  Rensselaer,  1  Johns.  Ch.  Rep.  360. 

(*112) 


OF  PURCHASING.  |9Q 

So  a  person  chosen  as  an  arbitrator,  cannot  bu_y  up 
(*)the  unascertained  claims  of  any  of  the  parties  to  the 
reference  :  it  would  corrupt  the  fountain,  and  contami- 
nate the  award (w). 

Where  a  person  cannot  purchase  the  estate  himself,  he 
cannot  buy  it  as  agent  for  another(o)(333),  and  perhaps 
cannot  even  employ  a  third  person  to  contract  or  bid  for 
the  estate  on  behalf  a  stranger(jt7). 

This  general  rule  stands  much  more  upon  general  prin- 
ciple, than  upon  the  particular  circumstances  of  any  indi- 
vidual case.  It  rests  upon  this,  that  the  purchase  is  not 
permitted  in  any  case,  however  honest  the  circumstances  ; 
the  general  interests  of  justice  requiring  it  to  be  destroy- 
ed in  every  instance  ;  as  no  court  is  equal  to  the  exami- 
nation and  ascertainment  of  the  truth  in  much  the  greater 
number  of  cases(<7). 

The  necessity  of  such  a  general  rule  is  evinced  by  an 
instance  mentioned  by  Lord  Eldon,  of  a  solicitor  under  a 
commission,  who  finding  he  could  make  a  bargain  to  sell 
the  estate  for  1,400/.  kept  that  in  his  own  breast,  and 
made  a  bargain  with  the  assignees  for  the  purchase  of  it 
at  350/(r). 

In  Davidson  v.  Gardner(5),  Lord  Hardwicke  laid  down 
the  following  rules  as  to  a  trustee  purchasing  of  his  cestui 

13  Ves.  jun.  138,  as  to  gifls,  which  cite  the  early  cases.  And  see 
Lord  Selsey  v.  Rhoades,  2  Sim.  &  Stu.  41  ;  Williams  v.  Llewellyn,  2 
You.  &  Jer.  68  ;  Champion  tJ.  Rigby,  1  Russ.  &  Myl.  539. 

(n)  Blennerhasset  V.  Day,  2  Ball  &  Beatty,  116;  Cane  v.  Lord 
AUen,  2  Dow,  2SD. 

(o)  See  9  Ves.  jun.  248  ;   ex  parte  Bennet,  10  "Ves.  jun.  381. 

(p)   Soe  ex  parte  Bennet,  ubi  sup.  sed  qu. 

(<jf)   See  8  Ves.  jun.  345,  per  Lord  Eldon. 

(r)  See  8  Ves.  jun.  349. 

(»)  Chancery,  21st  July  1743,  MS.  See  Prestage  r.  Langford, 
infra;  Lambert  «.  Bainton,  1  Cha.  Ca.  199. 

(333)   See  Davoue  v.  Fanning,  2  Johns.  Ch.  Rep.  2.V2. 

VOL.   n.  17  (*113) 


■tOQ  OF  THE  PERSONS  INCAPABLE 

que  trust.  1st,  That  in  all  cases  of  a  trustee  purchasing  of 
the  cestui  que  trust,  the  Court  will  look  upon  it  with  a  jeal- 
ous eye.  Sdly,  It  has  been  laid  down  as  a  general  rule, 
that  where  a  trustee  for  persons  not  sui  juris,  as  infants 
and  femes  covert,  becomes  both  buyer  and  seller,  the  Court 
will  under  no  circumstances  whatever,  be  they  never  so 
(*)fair  between  the  parties  (as  consulting  the  friends  of  the 
infant,  or  of  their  refusing  to  purchase,  or  the  like),  estab- 
lish a  purchase  of  that  kind,  unless  the  transaction  is  legi- 
timated by  the  act  of  the  Court,  or  some  public  act(334). 
And  the  reason  is,  because  if  such  purchases  were  al- 
lowed, they  would  be  liable  to  very  great  abuses;  and 
this  is  the  reason  why  the  Court  will  not  allow  a  trustee- 
any  thing  for  his  trouble.  So,  where  a  trustee  renewed 
a  lease  in  his  own  name,  though  it  was  ])roved  that  all 
the  friends  of  the  infant  were  consulted,  and  they  refused 
to  renew  it,  the  Court  decreed  it  to  be  in  trust  for  the  in- 
fant, though  not  the  least  unfairness  appeared  ;  which  was 
the  case  of  Rumford  Market,  before  Lord  King(i).  But 
if  a  bill  is  brought,  and  a  sale  ordered,  and  notice  of  the 
sale  before  the  Master,  and  the  trustee  purchases,  the 
Court  has  refused  to  set  such  sale  aside,  all  the  other  cir- 
cumstances being  fair.  So  where  there  was  a  public  sale 
of  an  estate  by  proclamation  in  the  country;  which  was 
the  case  of  Saunders  v.  Burroughs,  before  the  present 
Master  of  the  Rolls;  but  if  that  had  been  a  private  sale, 
though  the  consent  of  all  the  relations  was  had,  and  no 
unfairness  appeared,  I  think  such  a  sale  should  be  set 
aside,  at  least  not  carried  into  execution.  But  it  might 
be  inconvenient  to  extend  the  riile  so  far  as  to  prevent  a 
trustee  from  purchasing  of  one  who  was  sui  juris,  where 

(/)   Keech  V.  Sandford,   Sel.   Cha.   Ca.    61.     See  Lesley's   case,  2 
Freem.  62. 

(334)  See  Bavoue  v.  Fanning,  2  Johns.  Ch.  Rep.  252,  258.    Jack- 
son V.  Woolsey,  1 1  Johns.  Rep.  446. 
(*114) 


OF  PURCHASING. 


131 


no  unfairness  appeared.  And  in  the  principal  case,  which 
was  of  a  mixed  kind,  the  defendant  who  had  purchased 
being  a  trustee  for  the  plaintifif,  who  w'as  a  feme  covert, 
and  had  the  estate  to  her  separate  use,  and  therefore  in  a 
court  of  equity  considered  as  a  feme  sole,  and  sui  juris,  as 
to  the  disposal  of  her  estate  ;  Lord  Hardwicke  dismissed 
the  bill,  which  was  brought  to  set  aside  the  assignment 
she  had  made  of  her  interest  in  a  brewhouse  to  the  de- 
fendant ;  (*)it  appeared  that  she  had  received  a  full  value, 
and  no  particular  instances  of  fraud  being  proved. 

From  this  case  it  appears  that,  in  the  time  of  Lord 
Hardwicke,  a  purchase  by  a  trusteCj  even  for  infants,  was 
deemed  good,  if  the  estate  was  sold  by  public  auction,  or 
before  a  master ;  but  a  purchase  by  a  trustee,  whether  for 
adults  or  infants,  cannot  now  be  supported,  although  the 
estate  be  sold  by  public  anction(M),  or  before  a  Master, 
under  a  decree  for  sale(2').  Nor,  indeed,  ought  the  pub- 
licness  of  the  sale  to  sustain  a  purchase,  which  cannot 
otherwise  be  supported.  For  the  trustee  may  know  not 
only  the  surface  value,  but  that  there  are  minerals,  in 
which  case  he  would  buy  upon  the  rent,  ajid  gain  all  that 
advantagef?/).  So  there  may  be  a  great  many  clan- 
destine dealings,  which  may  bring  it  to  a  price  far  short 
of  that  which  would  be  produced  if  full  information  was 
given(z). 

But  under  particular  circumstances,  a  purchase  by  a 
trustee  or  agent,  before  the  Master,  may  be  confirmed, 
although  with  great  reluctance. 

(«)  York-Buildings  Company  v.  IMackenzie,  8  Bro.  P.  C.  42  ;  Which- 
cote  V.  Lawrence,  3  Ves.  jun.  740  ;  Campbell  v.  Walker,  6  Ves.  jun. 
678;  Sanderson  v.  Walker,  13  Ves.  jun.  601,  S.  C. ;  and  ex  parte 
James,  S  Ves.  jun.  337;  and  see  10  Ves.  jun.  393  ;  Attorney-General 
r.  Lord  Dudley,  Coop.  146. 

{x)  Price  V.  Byrn,  5  Ves.  jun.  681,  cited.  See  Cary  v.  Gary,  2  Scho. 
&  Lef.  173. 

(y)   See  10  Ves.  jun.  394. 

'^^  Sec  8  Ves.  jun.  349.  *    .  • 

(*n6) 


|02  OF  THE  PERSONS  INCAPABLE 

Thus,  in  Wren  v.  Kirton(a),  the  foots  were  these  :  Upon 
a  former  sale  before  the  Master,  the  sum  of  23,000/.  was 
bid  by  a  person  bidding  bona  fide.  That  sale  was  defeated 
by  setting  up  a  fictitious  bidder.  Afterwards  the  lot  was 
ao-ain  put  up  three  times.  On  the  two  first  occasions  no 
more  was  offered  than  12,000/.  and  6,000/.  At  the  last 
sale  one  Wilson  was  declared  the  purchaser  at  the  sum  of 
(*)15,000/.  He  purchased  as  trustee  for  Wade,  the  agent 
and  manager  of  the  colliery. 

The  Lord  Chancellor  said,  if  this  bad  been  an  original 
sale,  and  the  agent  had  purchased  in  the  name  of  another 
person,  very  slight  circumstances  would  have  induced 
him,  even  at  some  risk,  to  set  that  aside  ;  as  it  was  the 
duty  of  Wade,  if  he  meant  to  bid,  to  furnish  all  the  know- 
ledge he  had  to  those  who  were  to  sell.  The  difficulty  that 
pressed  him  was,  the  consequence,  the  danger  of  further 
loss  by  resale.  He  would  (he  added)  not  hesitate  to  open 
the  sale  if  the  least  advance  upon  15,000/.  was  offered ; 
but  without  such  an  offer  there  was  nothing  leading  him 
to  suppose  it  would  ever  again  reach  the  sum  that  was 
originally  bid. — The  Master's  report  of  the  best  bidder 
was,  with  considerable  reluctance,  confirmed  ;  unless,  on 
or  before  the  first  seal,  an  application  should  be  made  to 
open  the  biddings,  giving  security  to  answer  the  difference 
between  the  produce  of  the  resale  and  the  sum  of  15,000/. 
No  security  was  however  offered,  and  the  agent  com- 
pleted the  purchase. 

In  Oldin  v.  Samborne(6),  Lord  Hardwicke  said,  that 
it  was  improper  for  a  guardian  to  purchase  his  ward's 
estate  immediate!}^  on  his  coming  of  age  ;  but  though  it 
has  a  suspicious  look,  yet  if  he  paid  the  full  considera-  v 
tion,  it  is  not  voluntary,  nor  can  it  be  set  aside.  But  it 
seems  clear,  that  such  a  purchase  would  now  be  set  aside 

■a)   See  S  '^''es.  jun.  6CVS. 
(6)  2  Atk.  15. 


OF  PURCHASING. 


133 


on  general  principles,  without  reference  to  the  adequacy 
of  the  consideration(c)(335). 

It  appears,  however,  that  unless  fraud  can  be  proved, 
the  circumstance  of  the  purchaser  being  related  to  the 
trustee,  agent  or  other  person  having  a  confidential  cha- 
racter, (*)cannot  even  be  opposed  as  a  bar  to  the  aid  of 
the  Court  {71  favor  of  the  purchaser(SSQ). 

Thus,  in  Prestage  v.  Langford (<:/),  the  auctioneer's  son, 
who  was  in  partnership  with  his  father,  and  another  per- 
son, bought  an  estate  sold  by  order  of  a  trustee  for  infant 
legatees,  and  contracted  to  sell  it  a  few  days  afterwards 
for  750/.  more  than  they  gave  for  it.  But  the  proof  of 
fraud  being  judged  defective,  the  Court  would  not  set 
aside  the  sale  merely  because  one  of  the  auctioneers  was 
buyer  and  seller  too,  but  decreed  a  specific  performance, 
nevertheless,  witiiout  costs  ;  in  order  (as  was  said)  to 
discourage  all  such  suspicious  transactions. 

So,  in  the  late  case  of  Coles  v.  Trecothick(e),  the  trus- 
tee's father  (for  whom  the  trustee  in  this  instance  acted  as 
agent),  purchased  an  estate  (which  had  been  previously 
put  up  to  sale  by  auction,  and  bought  in)  of  the  cestui  que 
trust  for  20,000/. ;  and  as  the  cestui  que  trust  had  full 
knowledge  of  the  value.  &c.  and  he  himself,  and  not  the 
trustee,  fixed  the  price,  and  consented  to  the  sale,  and  no 
fraud  was  proved,  a  performance  in  specie  was  decreed ; 
although  the  cestui  que  trust  had  since  the  contract  been 
offered  5,000/.  more  for  the  estate. 

It  must,  however,  be  observed,  that  the  case  of  Prestage 

(c)  See  Dawson  v.  Massey,  1  Ball  &  Beatty,  219. 

(d)  3  Wood.  248,  n.  Chan.  M.  11  Geo.  3. 

(e)  9  Ves.  jun.  234;    1  Smith,  233. 


(335)  A  guardian  ad  litenu  in  partition,  may  be  a  purchaser  at  a  sale 
made  by  Ihe  commisyionerp,  pursuant  to  an  order  of  the  court.  JacJt- 
30%  V.  Woolsty,  1 1  Johns.  Rep.  446. 

f336,   ^ee  T^anhlin  v.  Oseiy^d,  on  appeal,  14  Johny.  Rwp.  637. 

(*117) 


134 


OF  THE  PERSONS  INCAPABLE 


V.  Langford  was  decided  before  the  broad  rule  which  now 
prevails  was  laid  down.  Indeed  that  case  is  clearly  over- 
ruled by  later  decisions,  as  the  purchaser  was  in  fact  em- 
ployed in  the  sale.  And  the  decision  in  the  case  of  Coles 
V.  Trecothick  does  not  seem  to  meet  with  the  approba- 
tion of  the  Profession.  But  if,  under  the  particular  cir- 
cumstances of  this  case,  the  Court  had  not  compelled 
execution  of  the  contract,  it  would  certainly  hav€  been 
deciding,  that  neither  a  trustee  himself,  nor  any  one  con- 
iiected  with  him,  or  related  to  him,  can  buy  of  the  cestui 
(^)que  trust,  however  fair  and  open  the  circumstances  may 
be.  Indeed,  Lord  Eldon  seems  to  have  founded  his  de- 
cision on  the  ground,  that  the  trustee  himself  might  have 
purchased  the  estate. 

It  may  here  be  remarked,  that  where  a  power  is  given 
by  a  settlement  to  trustees  to  sell  the  estate  with  the  con- 
sent of  the  tenant  for  life,  or  to  the  tenant  for  life  to  sell 
with  the  consent  of  the  trustees,  it  is  in  practice  consider- 
ed, that  the  estate  may  be  safely  purchased  by  the  tenant 
for  life  himself.  Lord  Eldon,  although  fully  aware  of  the 
danger  attending  a  purchase  of  the  inheritance  by  a  tenant 
for  life,  seems  to  think  that  it  cannot  be  impeached  on  ge- 
neral principles(/J.  A  few  years  ago,  considerable  doubt 
was  entertained  by  the  Profession,  whether  the  power  of 
sale  and  exchange,  usually  inserted  in  settlements  of  es- 
tates, authorized  a  sale  or  exchange  to  or  with  the  te- 
nant for  life,  or  at  least  whether  equity  would  not  relieve 
against  the  transaction,  and  that  doubt  was  stated  as  a 
ground  for  requiring  the  aid  of  Parliament,  in  a  petition 
for  an  act  to  enable  an  exchange  of  settled  estates  with 
the  tenant  for  life  ;  which  it  was  conceived  could  not  be 
done  under  a  power  of  sale  and  exchange  in  the  settle- 
ment.     The   Chief  Baron,  and  Mr.   Baron  Hotham,  to 


(/)  See  9  Ves.  jun.  52;  and   11  Ve?.  jiin.  480:  but  sec   ib.  476, 
477. 

(^^118 


OF  PURCHASING.  j^^ 

whom  the  bill  was  referred,  reported,  and  submitted  it 
as  their  opinion,  that  the  doubt  which  was  the  cause  of 
petitioning  for  the  bill  was  not  well  founded  ;  and  there- 
fore the  bill  was  unnecessary,  and  that  the  passing  of  such 
a  bill  might  cause  a  great  prejudice  to  numerous  titles  under 
executions  of  powers  of  sale  and  exchange  of  a  similar 
kind :  and  the  House  of  Lords  accordingly  rejected  the 
bill  ;  in  consequence  of  which  many  estates  of  great  value 
have  been  purchased,  and  taken  in  exchange  by  tenants 
for  life,  under  the  usual  powers  of  sale  and  exchange. 
(*)Since  these  observations  were  written,  the  point  has 
again  been  agitated  in  practice.  It  is  a  point  which  no 
private  opinion  can  put  at  rest,  although,  after  the  opinions 
of  the  Chief  Baron  and  Mr.  Baron  Hotham,  sanctioned 
by  the  House  of  Lords,  and  followed  up  in  practice,  there 
seems  to  be  no  ground  to  fear  that  a  different  rule  will  be 
establis^ied.  The  point  has  been  decided  by  the  Lord 
Chancellor  since  the  above  observations  were  written,  in 
favor  of  the  execution  of  the  power(o),  and  the  point, 
therefore,  is  now  at  rest. 

H.  The  purposes  for  which  estates  are  vested  in  trustees 
for  sale,  are  generally  either  for  the  benefit  of  creditors  ; 
of  individuals  sui  juris;  or  persons  not  sui  juris;  and  we 
are  now  to  consider  in  what  manner  trustees  may  become 
purchasers  of  estates  vested  in  them  for  those  several 
purposes,  without  being  liable  to  be  called  to  account  for 
so  doing. 

Of  purchases  by  trustees  or  other  prohibited  persons  in 
general,  it  must  previously  be  remarked,  that  the  Court 
will  not  permit  them  to  give  up  their  office,  and  to  bid, 
as  it  would  lead  to  infinite  mischief.  The  cestuis  que 
trust  themselves,  as  we  shall  see,  can  decide  this ;  and  no 
Court  can  say  ab  ante  they  will  permit  it :  for  circum- 

(g-)   Howard  v.  Ducaiie,  1  Turn.  81 ;  see  Groverr.  Hugell,  3  Russ. 

428. 

(*119) 


136 


or  THE  PERSONS  INCAPABLE 


Stances  may  exist  at  the  time  of  the  second  sale  that   the 
Court  cannot  know(/0' 

1.  With  respect  to  a  trustee  for  creditors  purchasing 
the  estate  himself. 

In  Whelpdale  v.  Cookson(i),  where  a  trustee  for  credi- 
tors purchased  part  of  the  estate  himself,  Lord  Hardwicke 
said,  if  the  majority  of  the  creditors  agreed  to  allow  it, 
he  should  not  be  afraid  of  making  the  precedent(337). 

But  in  a  late  case(A;),  Lord  Eldon  said,  he  doubted  the 
(*)authority  of  that  case  ;  for  if  the  trustee  is  a  trustee 
for  all  the  creditors,  he  is  a  trustee  for  them  all  in  the  ar- 
ticle of  selling  to  others  ;  and  if  the  jealousy  of  the  Court 
arose  from  the  difficulty  of  the  cestui  que  trust  duly  in- 
forming himself  what  is  most  or  least  for  his  advantage, 
he  had  considerable  doubt  whether  the  majority  could  in 
that  article  bind  the  minority. 

It  seems  tJoubtful,  therefore,  whether  the  purchase  can 
be  supported  unless  all  the  creditors  consent,  although 
convenience,  and  the  general  rule  of  transactions  by  a 
body  of  persons,  are  strongly  in  favor  of  Lord  Hard- 
wicke's  opinion. 

2.  With  respect  to  a  trustee  for  a  person  sui  juris 
becoming  the  purchaser  of  the  estate. 

If  a  trustee  even  for  a  person  sui  juris  purchase  in  the 
name  of  another  person,  the  sale  will  be  set  aside,  as  that 
very  circumstance  carries  fraud  on  the  face  of  it(/)(338). 

{h)   Ex  parte  James,  8  Ves.  jun.  352. 
(i)   1  Ves.  9  ;   5  Ves.  jun.  682,  n. 

(A:)   See  6  Ves.  jun.  628.     See  ex  parte  Bage,  4  Madd.  459. 
(Z)  Lord  Hardwicke  v.  Vernon,  4  Ves.  jun.  411  ;   14  Ves.  jun.  504  ; 
and  see  2  Bro.  C.  C.  410,  n. 

(337)  See  Davoue  v.  Fanning,  2  Johns.  Ch.  Rep.  259.  See  also, 
1  Yeates,  312,  313. 

(338)  See  1  Peters'  Rep.  368.  M^Guire  v.  M'Gowen,  4  Des.  486. 
Moodifs  Les.  v.  Vandyke,  4  Binn.  43.  Corhin  v.  Waller,  2  Hayw. 
108. 

(*120) 


OF  PURCHASING.  Jg-y 

But  it  must  not  be  understood  that  a  trustee  cannot 
buy  from  his  cestui  que  trust ;  the  rule  is,  that  he  cannot 
buy  from  himself (m).  If,  therefore,  the  cestui  que  trust 
clearly  discharges  the  trustee  from  the  trust,  and  consi- 
ders him  as  an  indifferent  person,  there  is  no  rule  which 
says  that  he  may  not  purchase  of  him,  although  the  Court 
will  look  with  a  very  jealous  eye  on  a  transaction  of  that 
nature(w)  :  and  to  be  supported,  it  must  clearly  appear, 
that  the  purchaser,  at  the  time  of  the  purchase,  had 
shaken  off  his  confidential  character,  by  the  consent  of 
the  cestui  que  trust  freely  given,  after  full  information, 
and  bargained  for  the  right  to  purchase(o)(339J. 

So  an  attorney  is  not  incapable  of  contracting  with  his 
client,  but  the  relation  must  be  in  some  way  dissolved,  or, 
(*)if  not,  the  parties  must  be  pxit  so  much  at  arm's  length, 
that  they  agree  to  take  the  character  of  purchaser  and 
vendor ;  and  you  must  examine  whether  all  the  duties  of 
those  characters  have  been  performed.  If  an  attorney 
deal  with  his  client,  he  should  require  him  to  get  another 
attorney  to  advise  with  him  as  to  the  value,  or,  if  he  will 
not,  then  out  of  that  state  of  circumstances,  this  clear 
duty  results  from  the  rule  of  equity,  and  throws  upon 
him  the  whole  onus  of  the  case  ;  that  if  he  will  mix  with 
the  character  of  attorney  that  of  vendor,  he  shall,  if  the 
propriety  of  the  contract  comes  in  question,  manifest  that 
he  had  given  his  client  all  that  reasonable  advice  against 
himself  that  he  would  have  given  him  against  a  third 
person(/?).     So  if  an  attorney  be  employed  as  agent  in 

(m)  10  Ves.  jun.  246  ;  and  see  AylifTe  i-.  Murray,  2  Atk.  58  ;  Crowe 
V.  Ballard,  3  Bro.  C.  C.  117;   \  Ves.  jun.  215. 

(n)   See  6  Ves.  jun.  627. 

(o)   See  8  Ves.  jun.  353. 

(p)  Gibson  V.  Jeyes,  6  Vet^  jun.  266 ;  sec  p.  277,  278,  per  Lord 
Eldon,  C.  ;  Wood  v.  Downes,  18  Ves.  jun.  120  ;  Montesquieu  v,  San- 
dys, ibid.  302. 

(339)   See  Davoue  v.  Fanning,  2  Johns.  Ch.  Rep.  259,  260. 

vol.,   II.  18  (*121) 


|Og  OF  THE  PERSONS  INCAPAbLG 

the  management  of  a  landed  estate,  he- cannot  deal  with 
his  principal  for  that  estate  without  honestly  communi- 
cating to  the  principal  all  the  knowledge  respecting  its 
value  which  he  had  acquired  as  his  agent,  and  unless 
he  do  this,  the.  contract,  if  questioned,  cannot  be  sup- 
ported (9-) . 

And  the  same  circumstances  that  will  authorize  a  trus- 
tee to  contract  for  himself  will  enable  him  to  purchase  as 
the  agent  of  another(r). 

3.  With  respect  to  a  trustee  for  a  person  not  sui  juris 
buying  the  estate  himself. 

The  only  mode  by  which  this  can  be  effected,  so  as  to 
protect  the  purchaser,  is,  if  he  sees  that  it  is  absolutely 
necessary  the  estate  should  be  sold,  and  he  is  ready  to 
give  more  than  any  one  else,  that  a  bill  should  be  filed, 
and  he  should  apply  to  the  Court  by  motion  to  let  him  be 
the  purchaser.  This  is  the  only  way  he  can  protect  him- 
self; (*)and  Lord  Alvanley  said  there  are  cases  in  which 
the  court  would  permit  it ;  as  if  only  5001.  was  offered^ 
and  the  trustee  will  give  1,000/(5). 


I 


III.  It  remains  to  consider  what  remedy  the  cestui  que 
trust  has,  where  his  trustee  has  purchased  the  trust-estate 
in  a  manner  not  authorized  by  the  rules  of  the  Court.  It 
may  be  premised,  that  this  remedy  goes  precisely  to  the 
same  persons  who  were  entitled  to  the  estate  before  the 
sale.  Therefore,  a  man  having  a  legal  or  equitable  mort- 
gage on  the  estate,  which  was  not  satisfied  by  the  money 
produced  by  the  sale,  may  pursue  the  remedy  afforded  by 
equity  against  the  trustee.  And  the  circumstance  of  the 
mortgagee  having  been  present  at  the  sale,  where   he  bid 

(9)  Cane  v.  Lord  Allen,  2  Dow,  289,  per  Lord  Eldon,  C 
(r)   See  9  Ves.  jun.  248. 

(«)   Campbell  v.  Walker,  6  Ves.  jun.   678  ;   13  Ves.  jun.  601  ;  see 
1  Ball  &  Beatty,  418. 
(*122) 


OF  PURCHASING.  ]39 

for  the  estate,  is  no  objection  to  his  claim  against  the 
owner  of  the  estate,  where  he  (the  owner)  has  himself  set 
aside  the  sale  and  derived  any  advantage  from  itp). 

If  the  trustee  has  not  sold  the  estate,  the  cestui  que 
trust  may  insist  on  the  purchase  being  avoided,  and  may 
reclaim  his  estate(t«)  ;  for  it  need  not  be  shown  that  the 
trustee  has  made  an  advantage(.x). 

If  the  cestui  que  trust  require  a  re-conveyance  of  the 
estate,  he  must  repay  to  the  trustee  the  original  price  of 
the  estate,  and  also  all  sums  laid  out  for  permanent  benefit 
and  improvement  of  the  estate,  and  interest  thereon  from 
the  times  they  were  actually  disbursed  ;  and,  on  the  other 
hand,  the  trustee  must  pay  and  allow  all  the  rents  re- 
ceived by  him,  and  the  yearly  value  of  such  parts  as  have 
(*)been  in  his  own  occupation,  and  all  sums  received  by 
the  sale  of  timber  or  other  parts  of  the  inheritance,  and 
interest  thereon,  from  the  times  of  their  being  received. 
This  was  decided  in  the  great  case  of  York-Buildings 
Company  v.  Mackenzie,  in  the  House  of  Lords(?/) ;  and 
it  appears  that  the  House  allowed  him  the  value  of  im- 
provements of  all  kinds,  even  in  the  instance  of  a  man- 
sion-house erected,  and  plantations  of  shrubs,  ikc(z). 

And  where  the  cestui  que  trust  is  not  desirous  to  take 
back  the  estate,  he  may  require  it  to  be  put  up  to  sale 
again  at  the  price. at  which  it  was  bought  by  the  trustee  : 
and  that  if  any  one  bid  more^  the  trustee  shall  not  have 

[t)  Ex  parte  Lacey,  6  Yes.  jun.  625;  12  Ves.  jun.  8;  ex  parte 
Morgan,  12  Ves.  jun.  6. 

(m)  See  6  Ves.  jun.  627;  York  B.  C.  v.  Mackenzie,  8  Bro.  P.  C. 
42  ;  Lord  Hardwicke  v.  Vernon,  4  Yes.  jun.  411  ;  Randall  v.  Erring- 
ton,  10  Ves.  jun.  423. 

(x)  See  8  Ves.  jun.  348  ;   10  Ves.  jun.  385,  393. 

(y)  8  Bro.  P.  C.  42. 

(z)  See  6  Ves.  jun.  624.     This  must  have  been  decided  in  some  of 
the  subsequent  appeals  ;  See  8  Bro.  P.  C.  71,  note. 

(*123) 


I  fcQ  OF  THE  PERSONS  INCAPABLE 

the  estate  :  but  if  not,  that  lie  may  be  compelled  to  keep 

it(«). 

If,  however,  the  cestui  que  trust  be  desirous  to  have 

the  estate  put  up  in  lots,  and  it  was  bought  by  the  trustee 
in  one  lot,  he  must  either  repay  the  trustee  the  purchase- 
money  with  such  interest  as  he  would  have  been  liable 
to  pay  upon  his  bargain,  he  accounting  for  the  rents 
received,  or  paying  an  occupation-rent  for  the  estate,  if 
he  personally  occupied  it :  or  the  cestui  que  trust  must 
consent  to  have  tiie  estate  put  up  in  one  lot  on  the  terms 
before  mentioned(6). 

The  trustee  will,  in  case  of  a  resale,  be  allowed  any 
money  bona  fi  le  laid  out,  not  only  in  substantial  repairs 
and  improvements,  but  also  in  such  as  have  a  tendency 
to  bring  the  estate  to  a  better  sale  ;  which  will  be  added 
to  the  amount  of  the  purchase-money,  and  the  estate 
will  be  put  up  at  the  aggregate  sum  ;  deductings  how- 
ever, (*)an  allowance  for  acts  that  deteriorate  the  value 
of  the  estate(c)(340). 

If  any  old  buildings  have  been  pulled  down  by  the 
purchaser,  and  new  ones  erected,  the  old  buildings,  if 
incapable  of  repair,  will  be  valued  as  old  materials,  but 
otherwise  as  buildings  standing(^i). 

But  no  allowance  will  be  made  him  for  any  loss  he 
may  sustain  by  a  fall  in  the  funds(e). 

Formerly  where  a  purchase  by  a  trustee  was  set  aside, 

(a)    E.r  pa>-/e  Reynolds,  5  Ves.  jun.  707  ;   ex  parte  Hughes,  ex  par- 
te Lacey,  and  Lister  v.  Lister,  6  Ves.  jun.  617,  625,  631. 
(6)    Ex  parte  James,  8  Yes.  jun.  337. 

(c)  Ex  parte  Hughes,  6  Ves.  jun.  617;  ex  parte  Bennet,  10  Ves. 
jun.  381. 

(d)  6  Madd.  2. 

(c)   Ex  parte  James,  ubi  sup. 


(340)  See  Dilworth  v.  Smderling,  1  Binn.  488,  495.  Green  v. 
Winter,  1  Johns.  Ch.  Rep.  39,  40.  Methodist  Episcopal  Church  v. 
Jaques,  1  Johns.  Ch.  Rep.  450.     Southgate  v.  Taylor,  5  Munf.  420. 

(*124) 


OF  PURCHASING. 


141 


the  rule  was^  to  put  up  the  estate  again  to  be  sold  to  the 
best  bidder ;  the  trustee  accounting  for  the  profits,  and 
being  allowed  his  principal  money  and  interest  at  4  per 
cent(f). 

If  the  trustee  has  actually  sold  the  estate,  the  cestui 
que  trust  may  compel  the  trustee  to  pay  him  what  he  may 
have  received  above  the  original  purchase-money (^)(341). 

Where  a  trustee  buys  the  trust-estate  at  a  fair  price, 
the  sale  is  seldom  called  in  question,  unless  he  afterwards 
sell  it  to  advantage  ;  and  then  the  cestui  que  trust  is  of 
course  only  desirous  that  the  money  gained  by  the  trustee 
on  the  resale  should  be  paid  to  him. 

Owing  to  this  circumstance,  a  purchaser  of  a  trust- 
estate  from  a  trustee  who  had  previously  sold  to  himself, 
is  seldom  implicated  in  the  suit ;  but  it  seems  clear  that 
a  person  purchasing  with  notice  of  the  previous  trans- 
action would  be  liable  to  the  same  equity  as  the  trustee 
was  subject  to(342).  In  the  late  case  of  Randall  v.  Er- 
rington(A),  a  purchaser  from  a  trustee  who  had  purchas- 
ed in  the  name  of  a  trustee  was  made  a  defendant,  and  the 
(*)prayer  of  the  bill  was,  that  if  he  purchased  without 
notice,  the  trustee  might  account  for  the  money  gained  by 
the  resale ;  but  as  the  equity  against  the  purchaser  was 
not  noticed  either  by  the  counsel  or  the  court,  it  must  be 
presumed  that  no  notice  was  proved.  A  different  rule 
would,  to  use  the  expression  of  a  great  man,  blow  up  like 
gunpowder  this  branch   of  equitable  jurisdiction.     It  is 

(/)    See  Whelpdale  v.  Cookson,  1  Ves.  9;  5  Ves.  jun.  682,  n. 
( 0-)  Fox  V.  Macreth,  2  Bro.  C.  C.  400  ;  ex  parte  Reynolds,  5   Ves. 
jun.  707. 

(/i)   10  Ves.  jun.  423. 

(341)  "  No  profit,  gain,  or  advantage,  shall  be  derived  to  the  trustee, 
from  his  use  of  the  trust  funds.  All  the  gain  must  go  the  cestui  que 
trust."  Per  KENT,  Schieffelin  v.  Steivart,  1  Johns.  Ch.  Rep.  625. 
See  Brown  v.  Rickets,  4  Johns.  Cb.  Rep.  303. 

(342)  See  Murray  v.  Ballou,  1  Johns.  Ch.  Rep.  574,  575. 

(*125) 


1^2  OF  THE  PERSONS  INCAPABLE 

indeed  true,  that  in  the  case  in  the  House  of  Lords,  the 
proceedings  in  the  Court  of  Sessions  were  reversed  with- 
out prejudice  to  the  titles  and  interests  of  the  lessees  and 
others  who  might  have  contracted  with  the  defendant 
bona  fide,  and  before  the  dependence  of  the  process(I). 
But  this  may  be  satisfactorily  accounted  for  on  two 
grounds :  the  one,  that  no  notice  was  charged  on  the 
lessees,  nor  were  the  leases  attempted  to  be  impeached  ; 
the  other,  that  the  relief  sought  had  been  delayed  for 
many  years,  and  the  point  established  by  the  House  of 
Lords  was,  to  say  the  least,  a  new  doctrine  with  reference 
to  Scotland.  But  this  equity  is  now  well  established. 
No  person,  therefore,  can  be  advised  to  become  the  pur- 
chaser of  an  estate  so  circumstanced,  unless  xhQ  cestui  que 
trust  will  join  ;  nor  would  a  court  of  equity,  on  any  other 
terms,  enforce  a  specific  performance  of  such  a  contract. 
But  this  doctrine  cannot  be  extended  to  the  mere  case  of 
a  purchase  by  a  trustee  in  his  own  name,  from  his  cestui 
que  trust,  which  may  or  may  not  be  binding,  according  to 
circumstances,  unless  the  purchaser  have  also  notice  that 
the  sale  was  not  such  as  could.be  supported  in  equity. 

Before  closing  this  chapter  it  must  be  remarked,  that  if 
a  cestui  que  trust  acquiesce  for  a  long  time  in  an  improper 
purchase  by  his  trustee,  equity  will  not  assist  him  to  set 
(*)aside  the  sale(2).     In  Price  v.  Byrn(A^),  Lord  Alvanley 

(«)  See  ex  parte  James,  8  Ves.  jun.  337;  Hall  v.  Noyes,  3  Yes. 
jun.  748,  cited  ;  and  see  11  Ves.  jun.  226  ;  Morse  v.  Royal,  12  Ves. 
jun.  356;  Medlicott  v.  O'Donel,  1  Ball  &  Beatty,  156  ;  Champion  r. 
Rigby,  1  Russ.  &  Myl.  539. 

(A-)  5  Ves.  jun.  681,  cited  ;  and  see  Noriis  r.  Neve,  3  Atk.  26  ; 
Gregory  v.  Gregory,  Coop.  201. 

(I)  And  see  the  same  rule  as  to  under-leases  of  a  charity-estate, 
where  the  original  lease  is  set  aside  as  improvident.  Attorney-General 
V.  Griffith,  13  Ves.  jun.  565  ;  Attorney-General  v.  Backhouse,  17  Ves. 
jun.  283. 

(*126) 


OF  PURCHASING. 


143 


refused  the  aid  of  the  Court,  because  the  bill  had  been 
delayed  twenty  years(I)(343). 

But  laches  do  not  apply  to  a  body  of  creditors,  who 
may,  therefore,  claim  the  aid  of  equity  at  a  much  more 
distant  period  after  the  sale  than  an  individual  can(/). 

And  although  acquiescence  may  have  the  same  effect 
as  original  agreement,  and  may  bar  such  a  remedy  as 
this,  yet  the  question  as  to  acquiescence  cannot  arise 
until  it  is  previously  ascertained  that  the  cestui  que  trust 
knew  his  trustee  had  become  the  purchaser :  for,  while 
the  cestui  que  trust  continued  ignorant  of  that  fact,  there 
is  no  laches  in  not  quarrelling  with  the  sale  upon  that 
special  ground (w). 

A  purchase  by  a  trustee  from  his  cestui  que  trust  is 
merely  malum  prohibitum,  and  not  malum  in  se.  It  is  one 
of  those  contracts  which  admit  of  confirmation  by  the 
injured  party.  But  to  give  effect  to  a  confirmation  in 
a  case  like  this,  the  party  confirming  must  not  be  under 
the  control  of  the  person  whose  title  is  to  be  confirmed, 
and  he  must  have  a  full  knowledge  of  all  the  circumstan- 
ces, and  of  his  power  to  set  aside  the  former  transaction (7^). 

(/)  Whichcote  v.  Lawrence,  3  Ves.  jun.  740  ;  and  a  case  before  the 
Court  of  Exchequer,  6  Ves.  jun.  632,  cited  ;  York-Buildings  Company 
V.  Mackenzie,  8  Bro.  P.  C.  by  Tomhns,  42. 

(i»)  Per  Sir  William  Grant,  10  Ves.  jun.  427  ;  and  see  2  Ball  & 
Beatty,  ]29. 

(n)  Morse  v.  Royal,  12  Ves.  jun.  355  ;  Murray  v.  Palmer,  2  Scho. 
&  Lef.  474;  Roche  v.  O'Brien,  1  Ball  &  Beatty,  330;  Wood  v. 
Downes,  18  Ves.  jun.  120;  Dunbar  v.  Tredennick,  2  Ball  &  Beatty, 
304.  Vide  supra.  Vol.  1,  p.  265;  Cockerell  v.  Cholmeley,  1  Russ.  & 
Myl.  418;   Small  r.  Attwood,  1  Yo.  Rep.  407. 

(I)   See  now  3  &  4  Will.  4,  c.  27,  s.  24,  25,  26,  27. 

(343)  See  Bergen  v.  Bennett,  1  Gaines'  Cas.  in  Error,  1.  Jackson 
V.  Walsh,  14  Johns.  Rep.  407. 


[  144  ] 


(*)CHAPTER  XV. 

OF  JOINT  purchases;  purchases  in  the  names  of 

THIRD  PERSONS  ;  AND  PURCHASES  WITH  TRUST-MO- 
NEY :  AND  OF  THE  PERFORMANCE  OF  A  COVENANT  TO 
PURCHASE  AND  SETTLE  AN  ESTATE. 

SECTION  I. 
Of  Joint  Purchases. 


Where  two  or  more  persons  purchase  lands,  and  ad- 
vance the  money  in  equal  proportions,  and  take  a  con- 
veyance to  them  and  their  heirs,  this  is  a  joint  tenancy, 
that  is,  a  purchase  by  them  jointly  of  the  chance  of  sur- 
vivorship, which  may  happen  to  the  one  of  them  as  well 
as  to  the  other(a)(I)(344),  but  where  the  proportions  of 

(a)  See  Moyse  v.  Gyles,  2  Vern.  385  ;  York  v.  Eaton,  2  Freem.  23  ; 
Thicknesse  v.  Vernon,  2  Frecm.  84  ;  Anon.  Carth.  15  ;  and  see  3  Atk. 
735  ;  2  Ves.  258 ;  Rea  v.  Williams,  MS.  Appendix,  No.  23  ;  Aveling 
D.  Knipe,  19  Ves.  jun.  441. 

(344)  See  Caines  v.  Grants^  Les.  5  Binn.  119.  Cuyler  v.  Bradt, 
2  Caines'  Cas.  in  Error,  326.  Higbee  v.  Rice,  5  Mass.  Rep.  344,  350. 
JWqrtin  v.  Smith,  5  Binn.  16. 

(I)  This  distinction  has  not  been  thought  satisfactory.  A  writer,  to 
whom  the  Profession  is  under  great  obligation,  observes,  that  if  the  ad- 
vance of  consideration,  generally,  will  not  prevent  the  legal  right,  the 
mere  inequality  of  proportion,  which  may  naturally  be  attributed  to  the, 

(*127) 


OF  JOINT  PURCHASES. 


145 


the  (*)fnoncy  are  not  equal,  and  this  appears  in  the  deed 
itself,  this  makes  them  in  the  nature  of  partners(6)  ;  and 
however  the  legal  estate  may  survive,  jet  the  survivor  shall 
be  considered  but  as  a  trustee  for  the  others  in  propor- 
tion to  the  sums  advanced  by  each  of  them.  So  if  two 
or  more  make  a  joint  purchase,  and  afterwards  one  of 
them  lays  out  a  considerable  sum  of  money  in  repairs  or 
improvements,  and  dies,  this  shall  be  a  lien  on  the  land, 
and  a  trust  for  the  representative  of  him  who  advanced 
it(c). 

And  where  the  money  is  advanced  in  equal  proportions, 
so  that  the  purchasers  are  joint  tenants  in  equity  as  well 
as  at  law,  a  conveyance  by  the  purchasers  to  a  trustee 
without  any  consideration,  and  without  any  express  intent 
to  sever  the  joint  tenancy,  will  not  have  that  effect ;  but 
the  trust  estate  will  go  to  the  survivor  in  the  same  manner 
as  the  legal  estate  would  have  done(d). 

In  all  cases  of  a  joint  undertaking,  or  partnership, 
although  the  estate  will  survive  at  law,  yet  the  survivor 
will  in  equity  be  a  trustee  for  the  representative  of  the 
deceased  partner(345). 

(b)  See  2  Ves.  258. 

(c)  Per  Master  of  tlie  Rolls,  in  causa  Luke  r.  Gibson,  1  Eq.  Ca. 
Abr.  290,  pi.  3. 

(d)  Rea  v.  Williams,  MS.  Appendix,  No.  21. 


(345)  See  Duncan  v.  Forrer,  6  Binn.  193,  196. 

relative  value  of  the  lives,  cannot  have  that  effect.  See  9  Ves.  jun.  597, 
n.  (b).  The  distinction,  however,  seems  founded  on  rational  grounds. 
Where  the  parties  advance  the  money  equally,  it  may -be  fairly  presum- 
ed that  they  purchased  with  a  view  to  the  benefit  of  survivorship  ;  but 
where  the  money  is  advanced  in  unequal  proportions,  and  no  express  in- 
tention appears  to  benefit  the  one  advancing  the  smaller  proportion,  it  is 
fair  to  presume  that  no  such  intention  existed  ;  the  inequality  of  propor- 
tion can  scarcely  be  attributed  to  the  relative  value  of  the  lives,  because 
neither  of  the  parties  can  be  supposed  not  to  know,  that  the  other  may, 
immediately  after  the  purchase,  compel  a  legal  partition  of  the  estate,  or 
may  even  sever  the  joint-tenancy  by  a  clandestine  act. 

VOL.  II.  .  "  19  (*128) 


146 


OF  JOINT  PURCHASES. 


Thus,  in  a  case(e)  where  five  persons  purchased  hin  ds 
in  fee  of  the  commissioners  of  sewers,  and  in  order  to 
improve  and  cultivate  these  lands  afterwards  entered  into 
articles,  whereby  thej  agreed  to  be  equally  concerned  as 
to  profit  and  loss,  and  to  advance  each  of  them  such  a 
(*)sum,  to  be  laid  out  in  the  manurance  and  improvement 
of  the  land,  it  was  held  by  the  Master  of  the  Rolls  that 
they  were  tenants  in  common,  and  not  joint  tenants,  as 
to  the  beneficial  interest,  and  that  the  survivor  should  not 
go  away  with  the  whole  ;  for  then  it  might  happen  that 
some  might  have  paid  or  laid  out  their  share  of  the 
money,  and  others,  who  had  laid  out  nothing,  go  away 
with  the  whole.  And  the  decree  was  affirmed  by  Lord 
Chancellor  Km^(f). 

So  where  two  persons  took  a  building-lease,  and  laid 
out  money  in  erecting  houses,  they  v^ere  held  to  be  part- 
ners with  respect  to  this  property  :  and  the  survivor  was 
decreed  to  be  a  trustee  of  a  moiety  for  the  representatives 
of  the  deceased(^). 

But  as  the  lands  will  survive  a-t  law,  equity,  on  the 
general  rule  that  he  who  seeks  equity  shall  do  equity, 
will  not  relieve,  unless  the  person  seeking  relief  will  do 
what  he  equitably  ought  to  do. 

Thus,  in  the  first-mentioned  case,  the  ancestor  of  the 
party  seeking  relief  had  quitted  the  concern  for  many 
years  ;  since  which  time  the  other  proprietors,  to  enable 
them  to  carry  on  their  design,  had  purchased  some  other 
estates,  which  proved  a  losing  concern  ;  and  the  plaintiff 
was  only  relieved  on  contributing   his  share   of  the   pur- 

(c)  Lake  r.  Gibson,  ubi  sup.  and  see  Hays  v.  Kingdome,  1  Vein. 
33  ;  Jeffereys  v.  Small,  1  Vern.  217. 

(/)  Lake  v.  Craddock,  3  P.  Wms.  158  ;  S.  C.  MS.  ;  Morris  r.  Bar- 
rett, 3  You.  &  Jerv.  384. 

(g-)  Lyster  v.  Dolland,  1  Yes.  jun.  431.  See  2  Yes.  juii.  631  •,  and 
Elliot  V.  Brown,  9  Yes.  jun.  697,  cited. 

(*129) 


OF  JOINT  PURCHASES.  j  Ay 

cliase-monej  of  the  estates  so  bought,  with  interest  from 
the  time  the  money  ought  to  have  been  paid(/j). 

Lord  Chancellor  King  said,  that  this  was  plainly  a 
tenancy  in  common  in  equity,  though  otherwise  at  law ; 
and  the  defendant  Craddock  having  only  a  title  in  equity, 
that  he  must  do  equity ;  and  that  this  was  equitable  in  all 
j  (*)its  branches  ;  for  he  had  his  election  to  drop  all  claim, 
or  to  take  it  on  the  same  foot  with  the  rest  of  the  part- 
ners ;  and  that  it  was  not  reasonable  that  he  should  be  let 
into  the  account  of  the  profits  or  loss  of  the  undertaking 
until  he  had  made  his  election(i). 

If  it  be  doubtful  whether  the  purchasers  bought  the 
property  to  carry  on  trade,  an  inquiry  will  be  directed 
before  the  Master  to  ascertain  the  fact(y)(I). 

Where  two  or  more  persons  agree  for  the  purchase  of 
an  estate  in  moieties  between  them,  subject  to  incum- 
brances, which  are  to  be  discharged  out  of  the  purchase- 
money,  the  purchase  is  in  equity  considered  to  be  made 
for  their  equal  benefit,  and  on  a  mutual  trust  betiveen  them ; 
and  therefore,  although  one  of  them  may  have  abatements 
made  to  him  by  some  of  the  incumbrancers,  of  sums  due 
for  interest  or.  otherwise,  in  consideration  of  services  and 
friendship,  jftid^it  is  expressly  agreed  to  be  to  his  own 
use,  yet  equity  wifl  compel  him  to  account  to  the  other 
for  the  benefit  of   these  advantages(^'), 

So  a  new  lease  obtained   by  one  partner  shall  enure  to 


{h)   And  see  Senhouse  r.  Christian,  19  Ves.  167,  cited. 

(t)   MS.     The  judgment  is  nut  stated  in  any  other  printed  book. 

(j)  See  1  Ves.  jun.  435. 

{k)  Carter  v.  Home,  1  Eq   Ca.  Abr.  7,  pi.  13. 

(I)  Whether  the  property  as  between  the  representatives  shall    be 

deemed  real  or  personal,  see  Bell  v.  Phyn,  7  Ves.  jun.  453  ;   Batemaa 

r.  Shore,  9  Ves.  jun.   500  ;   Mackintosh  v.  Townsend,  1  Mont.   Partn. 

notes,  97  ;   Sclkrig  v.  Davies,  2  Dow.  231. 

(*J30; 


148 


OF  JOINT  PURCHASES. 


both(/),  although  he  obtained   it  clandestinely  and   on  his 
own  account(wi). 

If  two  persons  purchase  au  estate  subject  to  a  mortgage, 
and  the  mortgage-money  is  apportioned  between  them, 
and  each  of  them  covenants  with  the  other  to  pay  his 
share  of  the  money,  and  to  indemnify  the  other  from  it, 
(*)they  do  not  by  those  means  make  their  personal  estate, 
as  between  their  real  and  personal  representatives,  the 
primary  fund  for  payment  of  tlie  mortgHge-money(w). 

It  seems  that  wiiere  two  or  more  persons  purchase  an 
estate,  and  one,  for  instance,  pays  all  the  money,  and  the 
estate  is  conveyed  to  them  both,  the  one  who  paid  the 
money  cannot  call  upon  those  who  paid  no  part  of  it  to 
repay  him  their  shares  of  the  purchase-money,  or  to  con- 
vey their  shares  of  the  estate  to  him  :  for  by  payment  of 
all  the  money  he  gains  neither  a  lien  nor  a  mortgage, 
because  there  is  no  contract  for  either  ;  nor  can  it  be 
construed  a  resulting  trust,  as  such  a  trust  cannot  arise  at 
an  after-period  ;  and  perhaps  the  only  remedy  he  has,  is 
to  file  a  bill  against  them  for  a  contribution(o).  When- 
ever, therefore,  two  persons  agree  to  purchase  an  estate, 
it  should  be  stipulated  in  the  agreement,  that  if  by  the 
default  of  either  of  them  the  other  sHSl  be  compelled 
to  pay  the  whole,  or  greater  part  of  tlie  purchase-money, 
the  estate  shall  be  conveyed  to  him,  and  he  shall  hold  the 
entirety  against  the  other  and  his  heirs,  unlc'ss  he  or  they 
shall,  within  a  stated  time,  repay  the  ^um  advanced  on 
their  account,  with  interest  in  the  mean  time. 

(/)  Burroughs  v.  Elton,  11  Ves.  jun.  29. 

(m)   Featherstonhaugh  v.  Fenvvick,  17  Ves.  jun.  298. 

(n)   Forrester  v.  Lord  Leigh,  Ambl.  171.      Vide  supra,  vol.  ],  p.  188. 

(o)  See  Wood  v.  Birch,  and  Wood  v.  Norman,  Rolls,  7  and  8  March 
1804 ;  the  decree  in  which  case  does  not,  however,  authorize  the  ob- 
servation, but  the  author  conceives  it  to  follow,  from  what  fell  from  the 
Master  of  the  Rolls  at  the  hearing. 

(*131) 


OF  JOINT  PURCHASES.  |49 

But  it  has  been  held,  that  if  one  of  two  joint  tenants  of 
a  lease  renew,  at  his  own  expense,  and  the  other  party 
reap  the  full  benefit  of  it,  the  one  advancing  the  money 
shall  have  a  charge  on  the  other  moiety  of  the  estate,  for 
a  moiety  of  his  advances  on  account  of  the  fines,  although 
such  other  moiety  of  the  estate  be  in  strict  settlement 
at  the  time  of  the  renewal.  The  case  was  considered  to 
(*)fall  within  the  principle  upon  which  mortgagees  who  re- 
new leasehold  interests  have  been  decreed  entitled  to 
charge  the  amount  upon  the  lands(/?). 

Where  two  or  more  persons  purchase  an  estate,  and 
the  conveyance  is  taken  in  the  name  of  one  of  them,  the 
trust  may  be  proved  by  letters  written  subsequently  to  the 
purchase  ;  for  the  statute  of  frauds(9)  does  not  require 
that  a  trust  shall  be  created  by  a  writing(r)(346)  ;  but 
that  it  shall  be  manifested  and  proved  by  writing,  which 
means  that  there  should  be  evidence  in  writing,  proving 
that  there  was  such  a  trust(5)(347). 

But  although  two  persons  enter  into  a  treaty  for  the 
purchase  of  afi  estate,  and  one  of  them  desists,  and  per- 
mits the  other  to  go  on  with  the  intended  purchase,  on 
his  promising,  by  parol,  to  let  him  have  the  part  of  the 
estate  he  desired,  yet  it  seems  that  this  agreement  cannot 
be  enforced  on  account  of  the  statute  of  frauds(348). 

In  Lamas  v.  Baily(?),  which  was  a  case  of  this  nature, 
the  plaintiff  obtained  a  decree  at  the  Rolls,  it  being  in- 

{p)  Hamilton  w.  Denny,  1  Ball  &  Beatty,  199. 
{q)  29  Car.  2,  c.  3,  s.  7. 

{r)   See  n.  (1)  to  the  last  edit,  of  Gilb.  on  Uses,  p.  111. 
(»)   Forster  v.  Hale,  3  Yes.  jun.  696  ;  5  Ves.  jun.  308  ;  Randall  v. 
Morgan,  12  Ves.  jun.  67. 

{t)  2  Vern.  627  ;  and  see  Riddle  v.  Emerson,  1  Vern.  106. 

(346)  See  Boijd  v.  M'Lean,  1  Johns.  Ch.  Rep.  582.  Botsford  v. 
Burr,  2  Johns.  Ch.  Rep.  405,  409. 

(347)  See  JMovaii  v.  Hays,  1  Johns.  Ch.  Rep.  339. 

(348)  See  Henderson  v,  Hudson,  1  Munf.  610. 

(*132) 


150 


OF  JOINT  PURCHASES. 


sisted,  that  although  it  was  an  agreement  parol,  yet  it  u  as 
in   part  executed  by  the  plaintiff's  desisting  from  prose- 
cuting his  purchase,  who  otherwise  might  have  purchased 
for  himself,  or  at  least  have  enhanced  the  price  the  de- 
fendant was  to  pay,  so  that   the  defendant  had  a  benefit 
by  it ;  and    besides,  it  was  a  fraud(M),  and  like  the  case        j 
where  a  man  agreed  to  purchase  as  agent  for  another,       ' 
and  would  afterwards  retain  the  purchase  to  himself.     But 
upon  an  appeal  to  the  Lord  Chancellor,  the  decree  was      |j 
(*)reversed,  as  being  a  parol   agreement  within  the  pro- 
vision of  the  statute  against  frauds. 

Mr.  Powell(a:)  refers  to  an  anonymous  case  in  Viner(y), 
which  he  conceives  to  be  another  report  of  the  case  of  I 
Lamas  v.  Baily,  where  the  Lord  Chancellor  dismissed 
the  bill  because  there  was  no  absolute  and  positive  agree-  i 
ment  ;  but  the  words  were  ambiguous  and  uncertain, 
and  the  statute  intended  to  oust  as  well  all  such  ambi- 
guous agreements,  as  to  prevent  perjuries,  &lc.,  and  this 
agreement  would  not  bind,  unless  it  were  in  writing. 
And  Mr.  Powell,  therefore,  conceives  thai*  the  Judgment 
turned  on  there  being  no  absolute  or  positive  agreement, 
the  words  being  ambiguous  and  uncertain  ;  and  not  on 
t1ie  ground  that  the  forbearing  by  agreement  to  do  an  act 
might  not  be  a  part  performance,  and  raise  as  strong  an  i 
equity  to  have  the  benefit  stipulated  in  return,  as  an  act  i 
done.  I 

In  the  later  case  of  Atkins  v.  Rowe(2:),  some  i^ersons 
desirous  of  obtaining  a  lease  of  three  houses,  agreed  that 
one  of  them  should  bid  for  all  the  houses,  but  that  the 
lease  should  be  for  their  joint  benefit.  Accordingly  he 
bid,  and  a  lease  was  made  to  him  ;   and  to  a  bill  filed  by 


(«)   See  Thynn  v.  Thynn,  1  Vera   296. 
{x)    1  Powell  on   Contracts,  310. 

(i/)  5  Yin.  Abr.  621,  pi.  32.     Note,  the  case  of  Lamas  v.  Baily  is 
stated  in  the  same  page. 

(s)   Mose.  39  ;   and  see  Crop  v.  Norton,  stated  infra. 
(*133) 


\ 


I 


OF  JOINT  PURCHASES. 


151 


the  others  to  have  the  benefit  of  the  lease,  and  that  the 
purchaser  might  be  decreed  a  trustee,  he  pleaded  the 
statute  of  frauds  in  bar  both  to  the  discovery  and  relief. 
But  the  Lord  Chancellor  seemed  of  opinion,  that  the 
agreement,  although  by  parol,  was  not  within  the  statute, 
and  ordered  the  plea  to  stand  for  an  answer,  with  liberty 
to  except,  and  the  benefit  of  the  plea  to  be  saved  to  the 
hearing.  Thus  the  case  is  reported  in  Moseley.  It  ap- 
pears from  the  cases  in  the  House  of  Lords(«),  that  the 
(*)defendant  by  his  answer  denied  the  agreement,  and  the 
cause  being  at  issue,  several  witnesses  were  examined  on 
both  sides.  There  was  a  contrariety  of  evidence,  but  the 
plaintiff  proved  the  agreement  by  one  positive  witness, 
corroborated  by  circumstances.  But  the  Chancellor  dis- 
missed the  bill  without  costs,  and  his  decree  was  affirmed 
by  the  House  of  Lords. 

Upon  the  whole,  therefore,  the  better  opinion  perhaps 
is,  that  an  agreement  of  this  nature  cannot  be  enforced, 
although  certainly  it  does  not  appear  that  the  precise 
point  has  ever  been  decided  upon  an  absolute  agreement 
clearly  and  undeniably  proved. 

From  the  case  of  Smith,  treasurer  of  the  West-India 
Dock  Company  v.  the  Mayor  and  Corporation  of  Lon- 
don(6),  it  should  seem,  that  where  two  persons  agree  to 
purchase  an  estate,  and  one  of  them,  by  agreement  be- 
tween them,  completes  the  purchase,  and  pays  the  money, 
the  other  must  agree  to  accept  the  title,  and  pay  his  share 
of  the  purchase-money,  before  he  can  call  for  an  inspec- 
tion of  the  title-deeds,  in  order  to  investigate  the  title; 
unless  the  one  who  purchased  can  be  charged  with  such 
gross  negligence,  or  wilful  default,  as  will  strip  an  agent, 
as  such,  of  the  protection  w  hich  that  character  gives  him 

(a)  Cases,  Dom  Proc.  1730. 

(b)  Ch.  Dec.  16,  1801,  and  many  previous  days,  MS. 

(*134) 


152 


OF  PURCHASES  IN  THE 


in  all  transactions  in  which  he  duly  acts  according  to  his 
agency  :  and  in  case  any  such  gross  negligence  or  wilful 
default  can  be  proved,  the  injured  party  will  have  a  re- 
medy in  equity,  although  he  may  have  paid  his  share  of 
the  purchase-money. 


SECTION   II. 


Of  Purchases  in  the  Names  of  Third  Persons. 


I.  If  a  man  purchase  an  estate,  and  do  not  take  the 
conveyance  in  his  own  name  only,  the  clear  result  of  all 
(*)the  cases,  without  a  single  exception,  is,  that  the  trust 
of  the  legal  estate,  whether  freehold,  copyhold  or  lease- 
hold ;  whether  taken  in  the  name  of  the  purchaser  and 
others  jointly,  or  in  the  names  of  others,  without  that  of 
the  purchaser ;  whether  in  one  name  or  several ;  whether 
jointly  or  successive,  results  to  the  man  who  advances  the 
purchase-money(c)(349),  unless  such  a  resulting  trust 
would  break  in  upon  the  policy  of  an  act  of  parliament(c?). 
And  although  the  person  in  whose  name  the  conveyance 
is  taken  executes  no  declaration  of  trust,  yet  a  trust  will 
result  for  the  person  who  paid  the  money  by  operation  of 

(r)   Per  Lord  C.  B.  Eyre,  in  Dyer  v.  Dyer,  stated  infra. 
(d)   See  ex  parte  Houghton,  17  Ves.jun.  261  ;  and  see  Redington  v. 
Redington,  3  Ridg.  P.  C.  106. 

(349)   See  Boijd  v.  JSPLeati,  1  Johns.  Ch.   Rep.   582,  586.     Bots- 
ford  V.  Burr,   2  Johns.  Ch.  Rep.  406.      Cox  v.  Grant,   1  Yeates,  166. 
Foote  V.  Colvin,   3  Johns.   Rep   216.    Les.   of  Ge^inan  v.    Gahbald,  3 
Binn.  302. 

(*135) 


( 


i 


NAMES  OF  STRANGERS. 


153 


law  ;   this  species  of  trust  l)ein<^  expressly  excepted  out  of 
the  statute  of  frauds(6')(I)(o50). 

But,  unless  the  trust  arise  on  the  face  of  the  deed  itself, 
the  proofs  must  be  very  c\cm'(fJ(3o\)  :  and  however  clear 

(c)  21  Car.  2,  c  b',  s.  S.  See  Hungate  v  Hungate,  Toth.  184  ; 
Gascoigne  v.  Thwing,  1  Vern.  365  ;  Howe  v.  Howe,  1  Vern.  415  ; 
Anon.  2  Ventr.  361,  n.  (3)  ;  O'Hara  v.  O'Nei!,  21  Vin.  Abr.  497,  n.  ; 
2  Bro.  P.  C.  39  ;  Pelly  v.  Maddin,  21  Vin.  Abr.  498,  pi.  15  ;  Sir  Darcy 
Lever  i'.  Andrews,  7  Bro.  P.  C.  by  Tomlins,  288  ;  Ambrose  v.  Am- 
brose, 1  P.  Wms.  32^1  ;  ex  parte  Vernon,  2  P.  Wms.  549  :  Smith  v. 
Baker,  1  Atk.  385 ;  Lloyd  v.  Spillet,  2  Atk.  148 ;  Withers  v.  Withers, 
Ambl.  15  ;  Lade  v.  Lade,  1  Wils.  21  ;  Smith  v.  Lord  Camelford,-2 
Ves.  jiin.  713  ;   Riderr.  Kidder,  10  Ves.  jun.  360. 

(/)  Gascoigne  v.  Thwing,  1  Vern.  366  ;  Newton  v.  Preston,  Prec. 
Cha.  103;  Willis  i'.  Willis,  2  Atk.  71  ;  and  see  1  Atk.  60;  Ambl. 
414;  Acheriev  v.  Acheriey,  4  Bro.  P.  C.  67  ;  and  Smith  r.  Wilkinson, 
o  Ves.  jun.  705,  cited  ;  and  1  Dick.  328  ;  and  see  Lench  v.  Lench,  10 
Ves.  jun.  511  ;   Groves  v.  (Proves,  3  You.  &  Jerv.  163. 


il)   See  1  Will-  c.  60,  s.  16,  for  a  provision  against  the  infant  heir-at- 
law  of  a  nominal  purchaser;   and  supra,  vol.  1,  p,  132. 


(350)  See  Boyd  v.  JSP  Lean,  Botsford  v.  Burr,  Germany.  Gabbald, 
and  Foote  v.  Colvin,  ut  supra.  Jackson  v.  Sternbergh,  1  Johns.  Cas. 
153.  Jackson  V.  Mafsdorf,  11  Johns.  Rep.  91.  Jackson  v.  JVlills, 
13  Johns.  Rep.  463.  Jackson  v.  Morse,  16  Johns.  Rep.  197,  199. 
Wallace  v.  Duffield,  2  Ecrg.  &  Rawle,  526.  JS'PGuire  v.  M'Goiven,  4 
Des.  486. 

In  Seward  v.  Jackson,  8  Cowen,  406.  (in  error,)  where  E.  sold  two 
acres  of  land  to  S.,  on  his  own  credit,  taking  his  bond  for  the  purchase 
money  ;  but  S.  subsequently  paid  the  bond ;  held,  that  this  did  not 
raise  a  resulting  trust.  (Per  Spencer,  Senator).  So,  in  Botsford  r. 
Burr,  2  J.  Ch.  R.  409.  Ch.  Kent,  in  respect  to  such  a  question  says, 
"  nor  would  a  subsequent  advance  of  money  to  the  purchaser,  after  the 
purchase  is  complete  and  ended,  alter  the  case.  It  might  be  evidence 
of  a  new  loan,  or  be  the  ground  of  some  new  agreement ;  but  it  would 
not  attach  by  relation,  a  trust  to  the  original  purchase  ;  for  the  trust 
arises  out  of  the  circumstance,  that  the  monies  of  the  r6al,  not  the  no- 
minal purchaser,  formed,  at  the  thnc,  the  consideration  of  that  purchase, 
and  became  converted  into  the  land."' 

(331)   See   Boyd  v.    M'Lean,   ut   supra.      SntUing  v.  Utterback,   1 

VOL.   II.  20 


154 


or  PURCHASES  IN  THE 


they  may  be,  it  seems  doubtful  whether  parol  evidence  is 
admissible  against  the  answer  of  the  trustee  denying  the 
(*)trust(^)(352).     And  in  cases  of  this  nature  the  claim- 

(g)  Skett  V.  Whitmore,  2  Freem.  289 ;  Newton  v.  Preston,  Prec. 
Cba.  103.  See  Cottington  v.  Fletcher,  2  Atk.  155  ;  Bartlett  v.  Pick- 
ersgill,  4  East,  577,  n.  (6). 

Bibb,  609.     Foote  v.    Colvin,   3  Johns.  Rep.  222.     Bolsford  v.   Burr^ 
2  Johns.  Ch.  Rep.  409.      Wallace  v.  Duffield,  2  Serg.  &  Rawle,  527. 

(352)  Held  to  be  admissible,  in  Boijd  v.  JSV Lean,  1  Johns.  Ch.  Rep. 
682. ;  and  Snelling  v.  Utlerback,  1  Bibb,  609.  But  in  such  case,  pa- 
rol evidence  is  to  be  received  with  great  caution.  Boyd  v.  JVl^Lean,  ut 
supra. 

By  the  principles  of  the  common  law  there  was  no  process  but  against 
legal  estates,  so  that  uses  and  trusts,  and  equities  -of  redemption,  and 
all  merely  equitable  interests  in  lands  or  personal  property,  were  con- 
sidered only  as  creatures  of  equity,  and  were  not  liable  to  be  taken  and 
sold  on  execution.  Equitable  interests  are  only  to  be  reached  by  re- 
sorting to  a  court  of  equity  ;  and  where  it  is  clothed  with  suflScient  pow- 
ers to  grant  relief  in  all  cases,  creditors  cannot  be  prejudiced.  But 
this  defect  of  the  common  law,  cannot  be  supplied  in  all  cases  by  the 
limited  powers  of  this  court  in  equity.  Per  Wilde,  J.  in  Russel  v.  Lew- 
is, 8  Pick,  508,  where  it  was  decided  that  the  interest  of  a  cestui  qu& 
trust  was  not  liable  to  be  extended  by  execution  ;  because  in  Massa- 
chusetts there  is  no  statute  making  trust  estates  chargeable  with  the 
debts  of  the  cestui  que  trust.  The  estate  in  question  had  been  set  off 
to  the  demandant  to  satisfy  an  execution  ;  but  it  appeared  that  the  de- 
mandant was  only  a  nominal  plaintiff  in  the  action  ;  one  B.  being  iu 
equity  entitled  to  the  fruits  of  the  judgment.  "  This,  said  the  same 
learned  judge  in  delivering  the  judgment  of  the  court,  was  not  a  trust 
or  use  executed  by  the  statute  of  uses,  (27  Hen.  8,  c.  10,)  but  a  trust 
according  to  the  understanding  of  the  term  since  the  passing  of  the 
statute.  In  the  present  case  relief  may  probably  be  had,  if  the  tenant 
can  show  himself  entitled  to  relief  by  the  rules  of  equity,  as  the  dec- 
laration of  trust  was  made  by  deed.  By  the  10th  section  of  the  Eng. 
St.  of  frauds  (29  Car.  2.  c.  3.)  trust  estates  were  made  liable  to  exe- 
cution for  the  debts  of  the  cestui  que  trust,  but  this  statute  did  not  ex- 
tend to  the  provinces  nor  was  it  ever  adopted  in  this  State.  The  case 
of  Smith  V.  Lane  et  al.  3  Pick.  205.  decided  that  a  trust  could  only  be 
skown  by  writing;  parol  evidence  was  not  admissible.  But  where  an 
absolute  conveyance  was  made  upon  the  loan  of  money  and  the  grantee 
subsequently  executed  a  bond  to  the  grantor  to  reconvey  on  payment  of 

(*136) 


NAMES  OF  STRANGERS.  -i  er 

ant,  in  opposition  to  the  legal  title,  should  not  delay  as- 
serting his  right,  as  a  stale  claim  would  meet  with  little 
attention(^). 

(A)  Delane  v.  Delane,  7  Bro.  P.  C.  by  Tomlins,  279. 


the  money  ;  a  creditor  of  the  grantee  having  sued  out  a  foreign  attach- 
•  ment  against  the  grantor  was  declared  to  be  entitled  to  recover ;  the 
latter  having  sold  the  land  for  a  larger  amount  than  the  loan.  He  held 
the  land  until  the  sale,  and  the  proceeds  afterwards,  as  the  trustee  of  the 
principal,  for  the  payment  of  the  debt  to  himself  and  such  expenses  as 
he  had  a  right  to  charge,  and  for  the  use  of  the  principal  as  to  any  sur- 
plus! Richards  v.  Allen  et  al.  8  Pick.  405.  So,  in  Arms  v.  Ashley, 
4  ib.  71,  where  the  rents  and  profits  of  land  were  levied  on  to  satisfy 
an  execution  ;  and  the  judgment  creditor  signed  a  writing  engaginor  to 
pay  the  plaintiff  the  surplus  rent  after  payment  of  his  demand :  held, 
that  the  plaintiff  was  entitled  to  recover  the  surplus  money  out  of  the 
hands  of  the  defendant,  who  held  the  land  under  color  of  descent ;  the 
writing  though  nit  under  seal  is  a  sufficient  declaration  of  a  trast  within 
our  statute,  agreeably  to  the  decision  in  Barrell  u.  Joy,  16  Mass.  221. 
where  certain  expressions  used  by  Joy  in  a  pamphlet  which  he  publish- 
ed in  reply  to  one  previously  published  by  the  complainants,  were  consid- 
ered as  amounting  to  an  acknowledgment  that  the  estates  and  property, 
which  he  received  from  Barrell,  were  entrusted  to  him  for  certain  pur- 
poses ;  and  that  he  was  accountable  to  the  latter  for  a  just  distribution 
of  them  ;  and  for  any  balance  remaining  after  the  purposes  of  the  trust 
were  fully  answered.  Letters  and  other  papers,  any  declaration  in 
writing  however  informal,  made  by  the  grantee  or  assignee  of  property, 
at  any  time  after  the  conveyance,  is  competent  to  show  a  trust  accord- 
ing to  the  terms  of  such  a  declaration. 

In  Harrison  i'.  M'Mennomy  et  al.  2  Edw.  Ch.  R.  251,  where  a  trust 
was  created  for  the  benefit  of  certain  children  merely  by  a  deposit  of 
money  in  the  hands  of  a  third  person  ;  and  the  latter  executed  his  bond 
and  mortgage  to  the  children  :  held  that  this  money  notwithstanding  re- 
mained the  property  of  the  persun  depositing  it ;  and  subject  to  her  be- 
quest. The  V.  Ch.  observed  that  "  parol  evidence  is  admissible  to 
prove  a  trust  in  opposition  to  an  absolute  deed  or  written  instrument : 
but  it  must  be  evidence  of  so  positive  a  character  as  to  leave  no  doubt 
of  the  fact,  and,  at  the  same  time,  so  clearly  define  the  trust  as  that  the 
Court  may  see  what  is  requisite  for  its  due  execution.  There  can  be 
no  doubt  a  trust  was  created  for  the  benefit  of  the  children  upon  placing 
(he  money  in  the  hands  of  the  defendant :  for  it  was  not  a  loan  of  mo- 


156 


OF  PUllCHAfSES  IN  TilK 


It  has  been  said(/),  that  if  the  conisideration-money  is 
expressed  in  the  deed  to  be  paid  by  the  person  in  whose 
name  the  conveyance  is  take  n,  and  nothing  appears  in 
such  a  conveyance  to  create  a  presumption  that  the  pur- 
chase-money belonf2;ed  to  another,  then  parol  proof  can- 
not be  admitted,  after  the  death  of  the  nominal  purchaser, 
to  prove  a  resuhing  trust ;  for  that  u  ould  be  contrary  to 
the  statute  of  frauds  and  peijuries(3o3). 

This  proposition  has  been  adopted  by  another  \vriter(A;), 
who  says,  that  it  should  seem,  that  even  the  confession  of 
the  trust  by  the  nominal  purchaser,  to  countervail  a  de- 
claration in  writing,  and  create  a  trust  for  the  party 
advancing  the  money,  cannot  be  established  by  a  third 
person,  but  must  be  made  under  a  judicial  examination 
upon  oath^  or  by  the  pari  if  s  own  answer  in  equity.  This, 
lie  adds,  seems  understood   both   in   the  case  of  Ambrose 

(i)  See  Mr.  Sanders's  note  to  Lloyd  v.  Spillet,  2  Atk.  150;  and  see 
his  Essay  on  Uses,  I.  123 ;  and  see  the  3d  edit,  of  that  work,  ().  259, 
260. 

(it)   Roh.  on  Stat,  of  Frauds,  99. 


ney  to  be  repaid  by  him  as  borrower,  bnt  the  same  was  a  special  depo- 
sit for  the  purposes  of  investment  and  accumulation — ^the  fund  not  beinjr 
distributable  until  the  youngest  child  attained  the  age  of  twenty-one 
years.  The  number  of  parts  into  which  the  fimd  was  then  to  be  divid- 
ed is  left  uncertain  by  the  parol  evidence.  The  trust  restricting  the 
distribution  of  the  fund  to  the  survivors  is  not  made  out  ;  and  the  act 
of  the  defendant,  in  executing  a  mortgage  payable  as  mentioned,  is  evi- 
dence to  the  contrary.  In  order  more  clearly  to  show  that  the  trust  was 
not  as  is  asserted  by  the  defendant,  the  complainants  have  produced  the 
will  of  H.  :  and  it  has  been  made  one  of  the  points,  that  even  admit- 
ting the  money  to  have  been  confided  to  defendant  as  stated  by  him, 
still  the  subsequent  will  of  the  testatrix  must  alter  and  control  the  dis- 
position of  it.  I  think  this  correct.  The  money  was  still  her  money  ; 
and  she  might  declare  the  trusts,  and  fix  the  distribution  as  to  time, 
and  designate  the  persons  or  classes  of  persons  to  take.  All  which  she 
has  done  by  her  will. 

(353)    See    Gregory  v.    Setter,   1    Dall.    193.      Thompson's  Les.   v. 
White,  1  Dall    424.      Botjd  v.  M'Lean,  1  John."^.  Ch.  Rep.  586. 


I 


NAMES  OF  STRANGERS. 


157 


V.  Ambrose,  and  Ryall  v.  Ryall  ;  and  appears  to  flow  from 
the  proposition  before  stated  ;  for,  during  the  life  of  the 
nominal  purchaser,  no  proof  can  be  received  of  his  parol 
confession,  as  not  being  the  best  existing  evidence ;  and 
after  his  death,  it  is  mere  parol  evidence  contradicting 
the  deed,  and  not  of  strength  to  raise  a  resulting  trust. 

In  the  first  edition  of  this  work  the  author  submitted  it 
as  his  opinion,  that  the  proposition,  that  parol  proof  could 
(*)not  be  admitted  after  the  death  of  the  nominal  purchas- 
er, was  not  warranted  by  the  aijhorities  referred  to  in 
support  of  it(/),  and  that  the  statute  is  not  more  broken  in 
upon  by  admitting  parol  proof  after  the  death  of  the  nomi- 
nal purchaser,  tban  it  is  by  allowing  such  proof  in  his  life- 
time(354).  And  this  opinion  seems  to  be  confirmed  by 
the  case  of  Lench  v.  Lench(m).  The  question  there  was, 
whether  a  purchase  by  the  late  husband  of  the  plaintiff 
of  an  estate  was  made  with  some  trust-money  of  hers,  of 
which  he  had  obtained  possession.  Parol  evidence  was  ad- 
mitted of  conversations  with  the  husband,  in  order  to  prove 
the  fact.  Sir  Wm.  Grant,  Master  of  the  Rolls,  after  pre- 
mising that  there  was  not  only  no  covenant  by  the  husband 
to  purchase  land,  but  no  stipulation  in  the  settlement  that 
land  should  be  purchased,  but  merely  a  proviso,  that  the 
trustees,  with  the  wife's  consent  alone,  might  invest  the 
money  in  land,  said,  that  as  to  the  ground  that  the  pur- 
chase was  made  with  the  trust-money,  all  depended  upon 
the  proof  of  the  fact,  for  whatever  doubts  might  have  been 
formerlij  entertained  on  this  subject,  it  is  now  settled,  that 

{I)  Kirk  V.  Webb,  Prec.  Cha.  84  ;  Waller  de  Chirton's  case,  cited 
i/>. ;  Newton  v.  Preston,  Prec.  Cha.  133;  Gascoigne  v.  Thwing,  1 
Yern.  366  :   Hooper  v.  Eyles,  2  Vera.  480  ;   Crop  v.  Norton,  2  Atk.  74. 

(?n)  See  Lench  v-  Lencli,  10  Ves.  jun.  511.  The  point,  I  am  told, 
was  lately  decided  the  same  way  in  Ireland. 


(354)  See  commentary,  per  KENT,  upon    the    text,   in   Boijd    v. 
»\i'Z<cff/i,  1  Johns.  Ch.  Rep.  586.  el  scq. 

(*J37; 


158  ^^  PURCHASES  IN  THE 

money  may  in  this  manner  be  followed  into  the  land  in  which 
it  is  invested  ;  and  a  claim  of  this  sort  may  be  supported  by 
parol  evidence. — His  Honor  then  examined  the  weight  of 
the  testimony,  which  he  held  to  be  too  contradictory  and 
uncertain  to  be  depended  upon.  So,  in  Sir  John  Peachy's 
case(n),  Sir  Thomas  Clarke,  Master  of  the  Rolls,  laid  it 
down,  that  frauds  were  out  of  the  statute  of  frauds,  for 
that  the  Judges  had  resolved  it  was  absurd  that  a  statute 
which  was  made  to  prevent  frauds  should  be  made  a 
handle  to  support  them(S55).  And  therefore,  if  A.  sold  an 
estate  to  C,  and  the  consideration  was  expressed  to  be 
paid  by  B.,  and  the  conveyance  made  to  B.,  the  Court 
would  allow  parol  evidence  to  prove  the  money  paid 
byC. 

Where  the  evidence  is  merely  parol,  although  it  is 
clearly  admissible,  yet  it  will  be  received  with  great 
caution.  Evidence  of  naked  declarations  made  by  the 
purchaser  himself  is,  as  Sir  William  Grant  observed,  in 
all  cases,  most  unsatisfactory  evidence,  on  account  of  the 
facility  with  which  it  may  be  fabricated,  and  the  impossi- 
bility of  contradicting  it.  Besides,  the  slightest  mistake* 
or  failure  of  recollection  may  totally  alter  the  eflfect  of 
the  declaration. 

So  Lord  Hardwicke  laid  it  down  that  parol  evidence 
might  be  admitted  to  show  the  trust,  from  the  mean  cir- 
cumstances of  the  pretended  owner  of  the  real  estate  or 
inheritance  which  makes  it  impossible  for  him  to  be  the 
purchaser  (o)  (356) . 

(»0  Rolls,  E.  T.  1759,  MS. 
(o)   Willis  V.  Willis,  2  Atk.  71  ;  and  see  Ryall  r.  Ryall,    1  Atk.  59  ;       "* 
Ambl.  413  ;  and  Lench  r.  Lench,  10  Ves.  jun.  511. 


(355)  .Smt7/i  v.  Patton,  1  Serg.  &  Rawle,  83.     See  2  Serg.  &  Rawie, 
527. 

(356)  In  Massachusetts,  by  st.  1783,  c.  37,  s.  3,  all  declarations  or 
creations  of  trusts  or  conlidenccs  of  any  lauds,  tenements,  or  heredita- 

(*138) 


I 


i 


i 


i 


NAMES  OF  STRANGERS.  |  eg 

In  the  late  case  of  Lemau  v.  Whitley,  it  was  held  that 
where  an  estate  is  conveyed  by  the  owner  to  another  as 

ments  are  required  to  be  in  writing  signed  by  the  party,  who  is  by  law 
enabled  to  grant,  assign,  or  to  declare  such  trust,  or  by  his  last  will  in 
writing. 

It  cannot,  therefore,  be  shown  by  parol  evidence  that  a  deed,  abso- 
lute on  the  face  of  it,  was  made  as  a  security  for  a  debt,  upon  an  agree- 
ment to  reconvey,  &c.  Flint  v.  Sheldon,  13  Mass.  448.  And  the 
statute  applies  to  every  species  of  trust,  except  such  as  arise  by  impli- 
cation of  law. 

And  the  court  will  not  allow  of  the  admissifjn  of  parol  evidence  for 
the  purpose  of  showing  that  the  consideration  was  paid  by  a  person  not 
named  in  the  conveyance,  thereby  raising  a  resulting  trust.  Goodwin 
V.  Hubbard,  15  Mass.  218  ;  Runey  i'.  Edmands,  15  ib.  294. 

In  the  case  last  cited  a  portion  of  an  intestate  estate  was  assigned 
by  the  probate  court,  to  a  married  daughter,  she  paying  a  sum  of  money  ; 
and  her  husband  paid  the  sum  out  of  his  own  money  ;  held,  that  this 
created  no  trust  to  him  in  the  estate  so  assigned  to  his  wife,  because 
there  was  no  record  or  deed  from  which  the  trust  could  be  raised,     ib. 

In  Flint  V.  Sheldon,  supra,  Jackson,  J.  observed — '  The  tenant  offers 
parol  proof  that  the  conveyance,  although  absolute  on  the  face  of  it,  was 
not  in  truth  an  absolute  conveyance  ;  that  the  contract  or  agreement, 
upon  which  the  deed  was  made,  was  not  an  agreement  for  the  purchase 
and  sale  of  land,  but  for  the  loan  and  re-payment  of  a  sum  of  money ; 
and  that  the  deed  was  made  upon  the  express  condition,  that  it  should 
be  void,  or  that  the  grantee  should  reconvey  the  granted  premises,  upon 
the  re-payment  of  the  money  within  a  certain  time.  On  stating  the 
point  in  this  manner,  no  one  could  doubt  that  such  evidence  is  inad- 
missible. An  agreement  to  that  effect  even  if  made  in  writing  and 
signed  by  the  grantee,  would  nut,  unless  it  was  under  seal,  operate  as 
a  defeasance  of  the  deed,  nor  in  any  manner  affect  the  absolute  title, 
which  the  grantee  had  acquired  in  the  land.  But  such  an  agreement, 
if  not  reduced  to  writing,  would  have  no  effect  whatever.  The  admis- 
sion of  such  evidence  would  violate  the  fundamental  principle  recog- 
nized by  this  court  in  Stackpole  r.  Arnold,  1 1  Mass.  27,  ♦  that  deeds 
and  specialties  cannot  be  explained,  or  varied  in  their  signification,  by 
parol  evidence,  if  the  t-erms  made  use  of  in  the  instrument  are  capable 
of  a  sensible  explanation  of  themselves.'  The  case  of  Reading  v. 
Weston,  8  Conn.  R.  117,  is  to  the  same  point. 

In  Bullard  r.  Briggs,  7  Pick.  533,  where  one  Bates  conveyed  in 
mortgage  ;  and  a  creditor  of  Bates  levied  upon  his  right  to  redeem 
and  sold  the  same  to  the  demandant.     The  tenant  claimed  under  a  deed 


1  (JO  OF  PURCHASES  IN  THE 

a  purchaser,  although  he  is  really  only  a  trustee,  the 
nominal   seller  cannot   by  parol   evidence  alone  make  out 

from  Bates  whereby  the  latter  conveyed  the  equity  of  redemption.  Pa- 
rol evidence  was  admitted  to  show  that  the  true  consideration  was  the 
release  of  the  wife's  dower  ;  but  the  deed  to  the  tenant  expressed 
no  trust;  and  the  consideration  mentioned  in  the  deed  was  $1500. 
Parker,  C.  J.  in  delivering  the  judgment  of  the  court  says — '  Several 
points  arise  out  of  this  state  of  the  question,  which  we  have  considered 
with  much  attention.  1st.  Is  it  competent  to  this  tenant  to  avail  her- 
self of  the  facts  proposed  to  be  proved,  in  order  to  give  validity  to  the 
deed  to  her,  on  which  she  relies  for  her  defence  ? 

The  consideration  proposed  to  be  proved  is  different  from  that  which 
is  expressed  in  the  deed,  and  it  is  objected  that  the  deed  is  conclusive 
upon  this  point ;  but  we  think  it  has  been  reasonably  settled,  that  this 
matter  is  open  to  evidence.  More  or  less  than  is  expressed  in  a  deed 
may  be  proved  by  parol  evidence  as  the  consideration,  and  even  a  diffe- 
rent consideration,  if  valuable,  may  be  proved.  A  deed  is  valid  in  law 
with  any  valuable  consideration,  however  small ;  but  as  inadequateness 
of  consideration  may  be  relied  on  as  evidence  of  fraud,  the  party  claim- 
ing under  it  may  show  that  another  and  a  greater  consideration  was 
given  than  that  which  is  expressed  ;  and  this  is  done  to  rebut  the  pre- 
sumption of  fraud,  which  might  arise  from  the  apparent  consideration  in 
the  deed.  Cases  of  this  sort  are  of  frequent  occurrence  in  the  investi- 
gation of  conveyances  alleged  to  be  fraudulent. 

And  it  is  not  necessary  that  the  consideration  should  pass  immediate- 
ly from  the  grantee  to  the  grantor.  If  v'^.  bargains  for  land  with  B.,  and 
pays  the  agreed  price,  and  at  «5's.  request  the  deed  is  made  to  C,  with- 
out any  fraudulent  intent,  C.  may  maintain  his  title  to  the  land  by  prov- 
ing the  consideration  so  paid.  And  if  even  the  design  of  the  convey- 
ance were,  that  C.  should  hold  the  land  in  trust  for  A.,  but  he  has  exe- 
cuted no  writing  by  which  that  trust  can  be  legally  proved,  still  the  title 
of  C.  cannot  be  impeached  by  a  creditor  of  B.  on  that  account,  for  a 
declaration  of  trust  may  at  any  time  afterwards  be  executed,  or  A.  may 
confide  in  the  integrity  of  C,  and  it  is  a  matter  only  between  A.  and  C. 
whether  the  trust  be  executed  or  not.  In  the  case  supposed,  B.  has 
obtained  the  value  of  his  land,  and  his  creditors  are  not  necessarily  in- 
jured. It  would  be  for  a  jury,  on  trial,  to  determine  whether  the  trans- 
action was  bona  fide,  and  for  sufficient  consideration,  or  a  contrivance 
to  cover  the  property  from  the  creditors  of  B.  ;  and  on  this  question  the 
value  of  the  land,  compared  with  the  amount  of  the  consideration,  would 
be  an  important  ingredient. 

It  is  undoubtedly  clear,  that  a  mere  voluntary  settlement  made  by  a 


NAMES  OF  STRANGERS. 


161 


a  trust  for  himself,  but   he  will  have  a  lien  on   the  estate 
for  the  purchase-money(/?). 

(p)  4  Russ.  423  ;    Cripps  v.  Jee,  4  Bro.  C.  C.  472,  sed  qu. 

husband  upon  his  wife,  during  the  marriage,  he  being  in  debt,  is  void 
against  creditors  ;  but  it  is  equally  clear,  that  a  conveyance  made  in 
trust  for  the  wife,  after  marriage,  upon  the  transfer  made  to  him  by  the 
wife  of  an  equivalent  out  of  her  property,  will  be  established,  both  in 
equity  and  at  law ;  and  it  ought  to  be  so,  for  the  case  supposes,  that 
whatever  is  taken  from  the  fimds  of  the  husband,  whereby  he  might  sat- 
isfy his  creditors,  is  replaced  by  an  equal  amount  from  the  funds  of  the 
wife,  which  his  creditors  could  nnt  otherwise  roach.  Post-nuptial  con- 
tracts are  sanctioned  upon  this  principle,  and  the  convenience  and  inte- 
rest of  families  frequently  require  such  exchanges.  If  they  are  honest, 
they  ought  to  be  supported  ;  if  feigned  or  pretended,  they  will  be  un- 
covered and  defeated. 

The  consideration  for  this  intended  settlement  on  the  wife,  was  her 
right  of  dower  in  the  estate  which  the  husband  was  about  to  mortgage. 
Without  her  relinquishment,  he  could  not  raise  the  money  wanted  for 
his  support  and  his  debts.  Her  interest  was  a  valuable  interest,  which 
is  frequently  the  subject  of  contract  and  bargain  ;  it  was  an  interest 
which  the  law  recognizes  as  the  subject  of  conveyance  by  tine  in  Eng- 
land, and  by  deed  with  us.  It  may  be  denominated  a  contingent  inte- 
rest. Now  if  we  find  that  the  surrender  or  conveyance  by  the  wife,  of 
a  contingent  interest  in  property,  is  a  sufficient  consideration  for  the 
settlement  of  property  by  the  husband  upon  her,  then  the  default  should 
be  taken  off.  The  weight  of  authority  is  clearly  with  the  affirmative. 
The  case  of  Dolin  v.  Coltman,  1  Vern.  294,  in  which  a  conveyance 
to  the  wife,  of  the  whole  equity  of  redemption  in  land  which  the  hus- 
band had  mortgaged  and  in  which  she  had  relinquished  her  right  of 
dower,  was  set  aside  in  favor  of  two  subsequent  mortgagees  of  the  hus- 
band. They,  however,  were  subsequent  purchasers,  not  creditors,  and 
a  distinction  exists  in  favor  of  purchasers  by  st.  27  Eliz.  which  does 
not  hold  in  favor  of  creditors  under  the  13th  of  the  same  queen,  for  there 
must  be  fraud  in  the  latter  case  to  avoid  the  conveyance. 

A  late  writer  on  marriage  settlements,  Atherley,  (p.  162,)  who  ap- 
pears to  have  thoroughly  considered  the  subject,  and  has  reviewed  all 
the  authorities,  says,  '  This  case  is  but  shortly  reported,  and  the  reasons 
for  the  opinion  do  not  very  clearly  appear.  The  reason,  most  probably, 
was,  that  the  settlement  was  more  than  a  reasonable  equivalent  for  the 
interest  the  wife  had  parted  with,  and  if  so  that  case  in  no  wise  affects 
the  position  that  parting  with  a  right  of  dower  will  support  a  settlement 
vol..   II.  21 


^  f*t2  OF  PURCHASES  IN  THE 

An  express  trust,  although  by  parol  only,  will  prevent 
the  resulting  trust(9)(357)  ;  because  resulting  trusts  are 
left  by  the  statute  of  frauds  and  perjuries  as  they  were  be- 
fore ;  and,  previously  to  the  act,  a  bare  declaration  by  parol 
would  prevent  any  resulting  trust.  Besides,  an  equitable 
(*)presumption  maybe  rebutted  by  parol  evidence(/)(358); 
for,  as  Lord  Mansfield  has  observed,  an  equitable  pre- 
sumption is  only  a  kind  of  arbitrary  implication  raised,  to 
stand  until  some  reasonable  proof  brought  to  the  contrary. 

{q)  LadyBellasis  v.  Compton,  2  Vein.  294.  See  Lord  Altham  r. 
the  Earl  of  Anglesea,  Gilb.  Eq.  Rep.  16  ;  Roe  r.  Popliam,  Doiigl.  25. 

(r)  Langfielde  v.  Hodges,  Lofft,  2.30;  Rider  r.  Kidder,  10  Ves. 
jun.  360. 

of  marriage.'  This  writer  also  supports  the  position,  taken  in  this 
opinion,  that  the  consideration  need  not  be  expressed  in  the  deed  ;  for 
he  says,  if  the  settlement,  on  the  face  of  it,  appears  to  be  purely  vol- 
untary, no  notice  being  taken  of  the  wife  having  released  her  jointure, 
&c.  ;  yet  if  the  fact  of  her  having  done  so  can  be  shown  to  have  taken 
place  about  the  same  time  that  the  settlement  was  made,  the  court  will 
presume  the  settlement  to  have  been  made  for  that  consideration.  Ibid. 
164.  The  case  of  Ward  v.  Shallet,  2  Ves-  sen.  16,  shows  that  there 
is  no  distinction  between  contingent  and  vested  interests  in  this  respect ; 
and  the  case  of  Lavender  r.  Blackstone,  2  Lev.  146,  at  law,  decided 
that  a  jointured  wife  may,  by  renouncing  her  present  provision,  become 
a  purchaser  for  a  valuable  consideration  from  her  husband,  of  an  ample 
provision  for  herself.  Chancellor  Kent,  vol.  2.  p.  139.  145.  in  his  Com- 
mentaries, cites  these  authorities,  and  advances  the  position,  that  post- 
nuptial contracts  founded  on  the  transfer  by  the  wife,  of  a  contingent 
interest  only,  are  valid  against  creditors. 

We  think,  then,  there  is  ample  authority  for  adopting  the  principle, 
that  a  relinquishment  of  dower  by  the  wife,  living  the  husband,  is  a 
good  and  valuable  consideration  for  a  conveyance  by  the  husband  to 
the  wife,  of  property  which  may  be  considered  but  a  fair  equivalent,  and 
that  such  a  conveyance  will  be  valid  or  otherwise,  according  as  it  shall 
appear  on  the  trial  that  it  was  fair  or  fraudulent,  like  conveyances  by  the 
husband  to  other  persons.  The  only  point  of  inquiry  is,  whether  the 
settler  has  received  a  fair  and  reasonable  consideration  for  the  thing  set- 
tled, so  as  to  repel  the  presumption  of  fraud. 

(357)  See  M'Guire  v.  M'Gotcen,  4  Des.  491. 

(358)  See  Botsford  v.  Burr,  2  Johns.  Ch.  Rep.  416. 
(*139) 


NAMES  OF  STRANGERS. 


163 


Therefore  parol  evidence  will  be  admitted  to  prove  the 
purchaser's  intention,  that  the  person  to  whom  the  con- 
veyance was  made  should  take  beneficially  ;  and  if  satis- 
factory, he  will  be  entitled  to  the  estate(5)  ;  but  the  proof 
rests  upon  him  to  show,  that  the  man  from  w^hom  the  con- 
sideration moved  did  not  mean  to  purchase  in  trust  for 
himself,  but  intended  a  gift  to  the  stranger(i). 

Where  a  man  merely  employs  another  person  by  parol, 
as  an  agent  to  buy  an  estate,  who  buys  it  accordingly 
but  denies  the  trust,  and  no  part  of  the  purchase-^noney 
is  jjaid  by  the  principal-,  and  there  is  no  written  agree- 
ment, he  cannot  compel  the  agent  to  convey  the  estate 
to  him,  as  that  would  be  directly  in  the  teeth  of  the 
statute  of  frauds(w)(359). 

And  although  the  agent  be  afterwards  convicted  of 
perjury  in^denying  the  trust,  yet  that  will  not  enable  the 
Court  to  decree  a  performance  in  specie(v)  ;  and,  there- 
fore, as  the  principal  cannot  avail  himself,  in  any  civil 
proceeding,  of  the  conviction  of  the  agent,  he  is  a  com- 
petent witness  to  prove  the  perjury(.r). 

(s)  Taj'lor  v.  Alston,  cited  in  Dyer  v.  Dyer,  Watk.  Copyh.  216  ;  S. 
C.  MS. ;  Goodright  v.  Hodges,  ibid.  227  ;  Lofft,  230  ;  2  East,  534, 
n.  ;   Maddison  v.  Andrews,  1  Ves.  57. 

{I)    See  3  Ridg.  P.  C.  178. 

(tt)  Bartlett  v.  Pickersgill,  Burr.  2255  ;  4  East,  577,  n.  (6).  See 
Rastel  V.  Hutchinson,  1  Dick.  44. 

{v)  Bartlett  v.  Pickersgill,  uhi  sup. 

(x)  The  King  v.  Boston,  4  East,  572.     See  Fell  v.  Chamberlain,  2 


(359)  See  Botsford  v.  Burr,  2  Johns.  Ch.  Rep.  409.  and  see  Hughes 
V.  JMoore,  7  Cranch,  176.  But  if  a  part  only  of  the  purchase  money 
be  paid  by  the  cestui  que  trust,  the  land  will  be  charged  with  the  money 
advanced,  |)ro  tatito.  Botsford  v.  Burr,  2  Johns.  Ch.  Rep.  410.  The 
payment  or  advance  of  money  after  the  purchase  is  c  ompleted,  will  not 
raise  a  resulting  trust.  Botsford  v.  Burr,  2  Johns.  Rep.  414.  There- 
fore, to  raise  a  trust  by  implication  or  operation  of  law,  an  actual  pay- 
ment, or  loan  of  money  by  the  cestui  que  trust,  at  the  time  of  the  pur- 
chase, must  be  shown.     Steere  v.  Steere,  5  Johns.  Ch.  Rep.  1. 


164 


OF  rUKCHASES  IN  THE 


In  Crop  V.  Norton(//),  Lord  Hardvvicke  appears  to  have 
('*)been  of  opinion,  that  this  doctrine  of  resulting  trust 
onlj  extended  to  cases  where  the  whole  consideration  is 
paid  by  one  person,  and  the  conveyance  taken  in  the  name 
of  the  other.  He  said,  "  this  is  where  the  whole  con- 
sideration moves  from  such  person  ;  but  I  never  knew  it 
where  the  consideration  moved  from  several  persons ;  for 
this  would  introduce  all  the  mischief  which  the  statute  of 
frauds  was  intended  to  prevent.  Suppose  several  persons 
agree  to  purchase  an  estate  in  the  name  of  one,  and  the 
purchase-money  appears  to  be  paid  by  him  only,  I  do  not 
know  any  case  where  such  persons  sliall  come  into  this 
Court,  and  say  they  paid  the  purchase-money ;  but  it  is 
expected  there  should  be  a  declaration  of  trust." 

In  the  case  of  Wray  v.  Steel,  the  point  called  for  a  de- 
cision, and  Sir  Thomas  Plumer,  Vice-Chancellor,  fol- 
lowing the  true  principle,  decided  in  favor  of  the  result- 
ing trust.  What,  his  Honor  asked,  is  there  applicable  to 
.  an  advance  by  a  single  individual  that  is  not  equally  ap- 
plicable to  a  joint  advance  under  similar  circumstan- 
ces(2)(360)?  * 


II.  Before  the  statute  of  uses,  if  a  father  made  a  feoff- 
ment to  a  stranger  without  any  consideration,  the  law 
raised  an  use  by  implication  to  himself;  but  if  he  made 
a  feoffment  to  his  son,  no  use  arose  to  the  father  by  im- 
plication ;  because  the  blood,  which  is  a  sufficient  con- 
sideration, fixed  and  settled  the  estate  in  the  son.  And 
herein  the  law  of  trusts  doth  (as  it  ought  to  do)  agree 
with  the  law  of  uses  before  the  statute  of  H.  8. (a). 

Dick.  484,  supra,  vol.  1,  p.  114  ;  and  see  the  King  v.  Dalby,  Peake's 
Ca.  12,  and  Ihe  cases  cited  in  the  note. 

(y)   9  Mod.  233. 

(z)  2  Ves.  &.  Beam.  388, 

(a)  See  Rep.  /.  Finch,  341. 

(360)    See  Eofsford  v.  Bun;  2  Johns.  Ch.  Rep.  410. 
C*^140) 


NAMES  OF  STRANGERS. 


165 


Therefore,  if  a  father  purchase  in  the  name  of  a  child, 
although  illegitimate(6),  who  is  without  a  provision(c), 
(*)or  in  the  joint  names  of  such  a  child  and  of  another  per- 
son(rf),  it  will  not  be  deemed  a  resulting  trust  for  the 
father  but  a  gift  or  advancement  for  thechild(e)  ;  because 
a  father  is  under  an  obligation  of  duty  and  conscience  to 
provide  for  his  child  in  such  case.  And  if  the  father  die 
without  having  paid  all  the  purchase-money,  his  personal 
estate  must  pay  it  for  the  benefit  of  his  child(y)(361). 

Where,  by  the  custom  of  a  manor,  copyholds  are  granted 
for  lives  successive,  it  has  been  holden,  that  if  the  father 
pay  the  fine,  a  grant  to  children,  as  nominees,  shall  not  be 
an  advancement  for  them,  but  a  trust  for  the  father(g"), 
and  there  seems  some  ground  to  support  this  distinction  ; 
because  the  fathef  could  not  have  taken  the  whole  estate 
in  his  own  name. 

But  this  decision  has  been  over-ruled,  and  it  is  now 
settled,  that  such  a  purchase  is,  upon  the  general  rule, 
an  advancement  for  the  children,  and  not  a  trust  for  the 
father(/i),  where  the  grant  is  immediate  to  the  children, 
or  even  to  the  father  for  their  lives,  if  they  can,  according 
to  the  custom  of  the   manor,  take  at  law  under  such  a 

(6)  Beckford  v.  Beckford,  Lofft,  490  ;  Fearne's  Posthuma,  327  ; 
Fonblanque's  n.  (1)  to  2  Trea.  Eq.  127,  2d  edit. 

(c)    Eiriot  V.  Elliot,  2  Cha.  Ca.  231  ;  and  see  Rep.  i.  Finch,  341. 
.    (d)   Laniplugh  v.  Lamplugh,  1  P.  Wms.  112. 

(c)  Lady  Gorge's  case,  3  Cro.  550,  cited  ;  Lord  Grey  v.  Lady  Grey, 
1  Cha.  Ca.  296  ;  2  Svvanst.  594-,  Mumma  v.  Mumma,  2  Vern.  19  ; 
Shales  v.  Shales,  2  Freem.  252  ;  1  Eq.  Ca.  Abr.  382,  pi.  9  ;  Anon.  2 
Freem.  128,  pi.  151  ;   Taylor  r.  Taylor,  1  Atk.  386. 

(/)  Redington  u.  Redington,  3  Ridgway'sP.  C.  106.  See  Reding- 
ton  r.  Redington,  9th  July  1805,  printed  case  House  of  Lords. 

(g)  Dickenson  i'.  Shaw,  cited  in  Dyer  v.  Dyer,  Watk.  Copyh.  216  ; 
S.  C.  MS. 

(h)   Dyer  v.  Dyei-,  nhi  sup.  ;  and  see  Swift  v.  Davis,  8  East,  364,  n. 


(361)   See  Jackson  v.   JMatsdorf,    11  Johns.   Rep.  96.      Sampson  v. 
Sampson,  4  Serg.  &  Rawle,  333. 

(*141) 


|gg  OF  PURCHASES  IN  THE 

grant(^)  :  nor  is  it  material  that   the  purchase  is  of  a  re- 
version expectant  upon  the  death  of  a  stranger(j). 

A  purchase  by  a  papist  incapable  of  purchasing,  in  the 
name  of  a  protestant  son,  was  considered  a  stronger  case 
for  an  advancement  than  a  purchase  by  a  protestant 
(*)parent ;  because  otherwise  a  constructive  trust  prohi- 
bited by  statute  would  have  been  raised(A;). 

It  has  already  been  observed,  that  to  make  it  an 
advancement,  the  child  must  be  unadvanced  ;  but  an  ad- 
vancement in  part  is  not  material(/)  ;  and  a  child  having 
only  a  reversion  expectant  upon  a  life-estate,  will  be  con- 
sidered as  unadvanced(wi)  ;  and  even  if  the  child  be 
advanced,  yet  if  the  father  consider  him  unadvanced,  that 
will  be  sufl5cient(w). 

If  the  child  is  already  provided  for,  and  the  father  did 
not  consider  him  unadvanced(o),  or  if  the  father  con- 
sidered the  child,  from  the  first,  as  a  trustee  for  him,  he 
will  be  held  to  be  so(  p)  ;  but  the  proof  of  this  lies  on  the 
side  of  the  person  wishing  to  defeat  the  child's  claim  ; 
and  it  seems,  that  although  parol  evidence  of  verbal  de- 
claration is  admissible  in  support  of  the  deed,  it  is  inad- 
missible to  create  a  trust  against  it(g'). 

(t)  See  Right  v.  Bawden,  3  East,  260  ;  Smartle  v.  Penhallow,  Lord 
Raym.  994. 

(j)  Finch  V.  Finch,  15  Ves.  jun.  43. 

(fc)  Redington  v.  Redington,  3  Ridg.  P.  C  106.  See  ex  parte 
Houghton,  17  Ves.  jun.  251.     10  Geo.  4. 

(/)   See  Rep.  t.  Finch,  326. 

(m)   Lamplugh  v.  Lamplugh,  1  P.  Wms.  111. 

(»)  Redington  v.  Redington,  ubi  sup.  .  * 

(o)   Elliot  V.  Elliot,  2  Cha.  Ca.  231. 

(p)  Woodman  v.  Morrell,  2  Freem.  32  ;  Swift  r,  Davis,  8  East, 
3S4,  n.     See  Murless  v.  Franklin,  1  Swanst.  13. 

{q)  Shales  v.  Shales,  2  Freem.  252  ;  Lamplugh  v.  Lamplugh,  1  P. 
Wms.  Ill  ;  Taylor  r.  Taylor,  1  Atk.  386;  Redington  v.  Redington, 
3  Ridg.  P.  C.  106  ;  Finch  v.  Finch,  15  Ves.  jun.  43. 

(*142) 


NAMES  OF  STRANGERS.  |g7 

In  Swift  V.  Davis(r),  where  a  father  was  the  sole  pur- 
chaser of  an  estate  for  three  lives,  who  would  take  succes- 
sive, and  put  in  the  lives  of  himself  and  his  two  Sons  ;  and 
at  the  same  court  obtained  a  license  from  the  lord  to  him- 
self and  his  mother  (who  had  her  widowhood-right  in  the 
copyhold)  to  lease  for  seventy  years,  Lord  Kenyon  laid  it 
down,  that  in  such  a  case,  if  the  father  afterwards  grant  a 
lease  by  way  of  mortgage  pursuant  to  such  license  to  lease, 
and  there  be  a  custom  in  the  manor  for  the  first  taker  to 
(*)dispose  of  the  estate  as  against  the  other  lives,  such  cus- 
tom may  so  far  operate  as  to  divest  the  legal  estate  of  the 
lives  in  reversion,  and  give  it  to  the  lessee.  Or,  if  there 
were  any  doubt  of  that,  or  if  the  license  of  the  lord  might 
be  construed  to  extend  only  to  the  first  taker  of  the  new 
copy jom^/// with  his  mother,  and  the  first  taker  alone  exe- 
cuted such  license  after  her  death,  yet  a  court  of  equity 
(even  if  the  surviving  life  (the  son)  succeeded  at  law  on 
his  strict  legal  title)  would  make  the  son,  the  surviving 
life,  convey  to  his  father's  lessee,  and  pay  all  the  costs  in 
law  and  equity. 

So  a  surrender  by  the  father  to  the  use  of  his  will 
immediately  after  the  grant  makes  the  son  a  trustee  for 
the  father(5). 

Possession  by  the  father,  during  the  infancy  of  his 
child(i),  will  not  be  deemed  subversive  of  the  child's 
claim  ;  for  it  cannot  be  supposed  the  parent  would  have 
named  a  youth  as  a  trustee ;  and  therefore  his  taking  the 
profits  must  be  intended  to  have  been  done  by  him  as 
guardian   to  the  son.     In  an  early  case(M),  indeed,  the 

(>•)  8  East,  354,  n. 

(«)   Prankerd  v.  Prankeid,  1  Sim.  &  Stu.  1. 

{t)  See  Finch,  340,  341  ;  Lainplugh  v.  Lamplugh,  1  P.  Wms. 
112;  Mumma  V.  Mumma,  2  Vern.  19;  Redington  v.  Redington,  3 
Ridg.  P.  C  106.  Note,  the  case  of  the  Attorney-general  r.  Bagg, 
Hard.  135,  turned  on  fraud. 

(u)  Sir  George  Binion  v.  Stone,  Nels.  Cha.  Rep.  68  ;  2  Freem.  169. 
See  King  r.  Denison,  1  Ves.  &  Bea.  260. 

(*143) 


Jgg  OF  PURCHASES  IN  THE 

tender  years  of  the  child  was  considered  as  evidence  that 
the  father  did  not  purchase  for  his  benefit,  because  he  was 
too  joung  to  need  an  advancement. 

A  distinction  has  been  drawn  where  the  parent  has 
taken  the  profit  after  the  child's  coming  of  age,  and  when 
of  discretion  to  claim  his  right(?;)  ;  in  which  case,  it  is 
said,  the  child  shall  be  a  trustee  for  the  father.  But  this 
cannot  be  depended  on.  It  seldom  happens  that  the 
(*)father  gives  the  son  possession  during  his  life  ;  and  yet, 
as  the  Court  observed  in  the  case  of  Lord  Grey  v.  Lady 
Grey(.T),  in  all  cases  whatsoever,  where  a  trust  shall  be 
between  the  father  and  son,  contrary  to  the  consideration 
and  operation  of  law,  the  same  ought  to  appear  upon  very 
plain  and  coherent  and  binding  evidence,  and  not  by  any 
argument  or  inference  from  the  father's  continuin^:  in 
possession,  and  receiving  the  profits,  which  sometimes 
the  son  may  not  in  good  manners  contradict,  especially 
where  he  is  advanced  but  in  part. 

So  the  circumstance  of  the  parent  laying  out  money 
in  repairs  and  improvements  will  not  make  the  child 
a  trustee(y).  \  ' 

A  declaration  of  trust  by  the  father,  subsequently  to  the 
conveyance,  will  not  divest  the  gift  to  the  child(z) ;  and 
therefore  a  devise  by  him  of  the  estate  will  be  inopera- 
tive (a). 

It  is,  however,  quite  clear,  that  according  to  the  gene- 
ral rule  of  equity,  if  the  father  devise  to  another  the  estate 

(«)  Lloyd  V.  Read,  1  P.  Wms.  608  ;  and  see  Gilb.  Lex  Praetoria, 
27L 

{x)   Rep.  /.  Finch,  340. 

(j/)  Shales  v.  Shales,  2  Freem.  252  ;  Mumma  v.  Mumma,  2  Vera. 
19. 

{z)  Woodman  v.  Morrell,  2  Freem.  32  ;  Elliot  v.  Elliot,  2  Cha.  Ca. 
231.     See  Redington  v.  Redington,  3  Ridgw.  P.  C.  106. 

(a)  Mumma  v.  Mumma,  2  Vern.  19  ;  Dyer  r.  Dyer,  Watk.  Copyh. 
216;  S.  C.  MS. 

(*144) 


NAMES  OF  CHILDREN. 


169 


bought  in  the  name  of  the  child,  and  make  other  provision 
for  the  child  by  his  will,  he  would  at  this  daj  be  put 
to  his  election;  although  in  the  early  case  of  Shales  i;. 
Shales(6),  where  these  circumstances  occurred,  the  child 
was  not  put  to  his  election. 

If  the  conveyance  of  the  fee  to  a  son  is  proved  to  be 
for  a  particular  purpose,  as  to  sever  a  joint-tenancy,  the 
child  will  be  a  trustee  for  the  father(c). 

A  purchasp  by  a  father,  in  the  joint  names  of  himself 
(*)and  son,  will  be  considered  as  an  advancement  for  the 
child,  if  he  is  unprovided  for ;  and  consequently  equity 
will  not  assist  to  defeat  his  legal  claim(J). 

But  a  purchase  in  the  names  of  father  and  son,  as  joint- 
tenants,  has  not  been  considered  so  strong  a  case  for  an 
advancement  as  it  formerly  was ;  it  is  said,  that  it  does 
not  answer  the  purpose  of  an  advancement,  for  it  entitles 
the  father  to  the  possession  of  the  whole  till  a  division, 
and  to  a  moiety  absolutely  even  after  a  division,  besides  the 
father's  taking  a  chance  to  himself  of  being  a  survivor  of 
the  other  moiety  :  nay,  if  the  son  dies  during  his  minority, 
the  father  would  be  entitled  to  the  whole  by  virtue  of  the 
survivorship,  and  the  son  could  not  have  prevented  it  by 
severance,  he  being  an  infant (e).  And  accordingly,  in 
a  case(/)  where  a  father  purchased  an  estate  in  the  names 
of  himself  and  son,  and  had  no  other  estate  to  which  a  judg- 
ment-creditor could  resort,  the  creditor  was  relieved  in 
equity  against  the  survivorship  at  law  ;  the  settlement 
being  considered  as  voluntary  and  fraudulent  against  cre- 
ditors(^). 

{h)  2  Freem.  252. 

(c)  Baylis  v.  Newton,  2  Vein.  28  ;  and  see  Birch  r.  Biagrave,  Ambl. 
264  ;   Sir  Walter  Raleigh's  case,  Hard.  497,  cited. 

(rf)   Scroope  r.  Scroope,  1  Clia.  Ca.  27.- 

(e)  Per  Lord  Hardwicke,  2  Atk.  480 ;  and  see  Pole  r.  Pole,  1  Ves. 
76. 

(/)   Stileman  r.  Ashdown,  2  Atk.  477. 

(g-)   vSee  13  Eliz.  c.  5. 
VOL.   II  22  (*146) 


J-^Q  OF  PURCHASES  IN  THE 

But  there  does  not  appear  to  be  much  weight  in  the 
reasons  above  stated.  It  is  evident  that  a  moiety  of  some 
estates  may  be  a  much  better  provision  than  the  entirety  of 
others.  The  chance  of  survivorship  which  the  father  takes 
is  an  incident  to  the  tenancy,  and  extends  equally  to  the 
son,  who,  after  he  attains  his  majority,  may  sever  the  joint- 
tenancy.  If  he  die  during  his  minority,  it  is  as  well 
that  the  estate  should  survive  to  the  father,  who  paid  the 
purchase-money,  and  perhaps  took  the  convHynnoo  to  him 
self  and  son  as  joint  tenants,  with  the  express  view  of 
advancing  him  only  in  the  event  of  his  attaining  that  age 
(*)at  which  the  law  considers  a  man  capable  of  nianaging 
his  fortune.  During  the  son's  minority  and  the  life  of  his 
father,  upon  whom  should  he  be  dependent  if  not  upon  his 
own  parent  ?  If  the  father  die  during  the  son's  minority, 
the  estate  will  survive  to  him  ;  so  that,  perhaps,  it  is  im- 
possible to  contend  with  success,  that  a  purchase  by 
a  parent  in  the  name  of  himself  and  child,  as  joint  tenants, 
is  not  as  strong  a  case  for  an  advancement  as  a  purchase 
in  the  name  of  the  child  solely.  Fraud  is  of  course  an 
exception  to  every  rule. 

A  purchase  in  the  name  of  a  child  solely,  or  jointly  with 
the  parent's  name,  is  not,  however,  w  ithin  the  27  Eliz.(A). 
And  therefore  a  subsequent  purchaser,  although  bona  fide, 
will  not  be  relieved  against  it(2). 

But  such  a  purchase  fell  expressly  within  the  letter  of 
the  21st  of  James  \.{j)  if  the  father  was  a  trader  at  the 
time  ;  and  his  being  solvent  would  not  protect  the  pur- 
chase(/c).  But  if  the  purchase  was  made  before  the 
father  engaged  in  trade,  and  without  any  fraudulent  pur- 
pose of  becoming  a  bankrupt,  it  would   have  been  good, 

(A)    C.  4. 

(»')    Lady  Gorge's  case,  3  Cro.  550,  cited, 
(j)   C.  15,  s.  5.      See  Walker  r.  Burrows,  1  Atk.  93. 
{k)   Fryer  r.  Flood,  1  Bro.  C.  C.    160  :   Glaister  r.  Hewer,  8  Ves. 
jun.  195. 
(*146) 


.1 

I 


NAjMES  OF  CHILDREN.  J-^J 

although    the    father    afterwards  commenced   tradesman, 
and  was  made  a  bankrupt(/). 

The  law  was  partially  altered  by  the  6  Geo.  4,  c.  16, 
s.  73,  which  only  gives  to  the  creditors  the  benefit  of  the 
purchase,  where  the  bankrupt  is  at  the  time  insolvent.  It. 
deserves  serious  consideration  whether  the  law  should  not 
be  restored. 

If  the  father  be  dead,  a  purchase  by  the  grandfather, 
in  the  name  of  his  grandchild,  is  subject  to  the  same  rules 
as  govern  a  purchase  by  a  father  in  the  name  of  his  cliild  ; 
(*)for  on  the  death  of  the  father,  the  grandchild,  is  under  the 
protection  of  the  grandfather(m) ;  but  in  Lloyd  v.  Read(w) 
this  distinction  does  not  seem  to  have  been  attended  to. 
The  case,  however,  depended  upon  its  own  peculiar  cir- 
cumstances. 

So  a  purchase  by  a  husband  in  the  name  of  his  wife 
is  also  deemed  an  advancement  and  provision  for  her(oj. 
But  if  a  purchase  in  the  name  of  wife  or  child  be  after 
marriage,  and  voluntary,  it  may  perhaps  be  fraudulent  as 
against  creditors(/7),  in  like  manner  as  if  the  settlement 
was  of  property  actually  vested  in  the  husband,  in  even 
which  case  it  seems  that  the  husband  must  be  proved  to 
have  been  indebted  at  the  time  of  the  settlement  to  the 
extent  of  insolvency,  in  order  to  affect  the  settlement(9). 
It  has,  however,  been  strenuously  argued,  that  a  purchase 
is  not  within  the  operation  of  the  statute  of  13  Eliz. ;  for, 
as  the  purchaser  may  give  the  money  to  the  object  of  his 
bounty  to  purchase  the  estate  for  himself,  he  may  by  the 
same  reason  direct  a  conveyance  to  be  made  to  him ;  and 

(/)  Crisp  V.  Pratt,  Cro.  Car.  548  ;  Lilly  v.  Osboni,  3  P.  Wms.  298 ; 
and  see  8  Ves.  jun.  200,  204. 

(•«{,)  Ebrand  v.  Dancer,  2  Cha.  Ca.  26. 

(u)    1  P.  Wms.  608. 

(o)    Kingdome  v.  Bridges,  Back  r.  Andrews,  2  Vern.  67,  120. 

ip)  Christ's  Hospital.  I).  Biidgin,  2  Vern.  683. 

iq)    See  Lusih  v.  Wiikin.son,  5  Ves.  jun.  384. 

(*J47) 


172 


OF  PURCHASES  IN  THE  NAMES  OF  CHILDREN. 


this  seems  to  be  the  better  oj)inion,  where  the  case  is  clear 
of  actual  fraucl(r). 

A  purchase  by  a  trader  in  the  name  of  his  wife  seems 
subject  to  the  same  rules  as  a  purchase  by  a  trader  in  the 
name  of  his  child(5).  But  a  purchase  by  a  trader  of  the 
land-tax  on  his  wife's  estate,  for  her  benefit(i)5  or  of  an 
enfranchisement  of  his  wife's  copyhold  estate,  or  money 
laid  out  by  him  in  building  on  her  estate,  being  mere 
(*)voluntary  expenditure,  cannot  be  made  a  ground  of 
charge  against  her  or  her  estate  by  his  creditors,  although 
he  was  insolvent  at  the  time(w). 

On  this  subject  it  remains  only  to  remark,  that  Lord 
Chief  Baron  Gilbert  observes(a;),  that  a  difference  is  taken 
between  a  purchase  in  the  name  of  a  son  and  of  a  daugh- 
ter; for  though  sons  are  often  provided  for  by  settlement 
of  lands,  yet  daughters  seldom  are,  therefore  the  presump- 
tion is  not  so  strong.  The  learned  author  does  not,  how- 
ever, refer  to  any  case  in  support  of  his  position;  and  in 
Lady  Gorge's  case  she  appears  to  have  enjoyed  an  estate 
purchased  by  her  father,  the  Earl  of  Lincoln,  in  her 
name(?/).  Indeed,  admitting  the  general  rule,  as  to  pro- 
viding for  daughters  by  settlement  of  lands,  ivhere  there  is 
a  son ;  yet,  in  the  case  under  consideration,  the  purchase 
itself  is  strong  evidence  of  tlie  intent,  more  especially  as  a 
woman  is  an  unfit  trustee  of  a  real  estate. 

(r)  See  Fletcher  i\  Sidley,  2  Vern.  490  ;  Proctor  v.  Warren,  Sel. 
Cha.  Ca.  78;  and  8  Ves.  jun.  199. 

(«)  See  Glaister  t?.  Hewer,  8  Ves.  jun.  195;  9  Ves.  jun.  12;  11 
Ves.  jun.  377. 

(t)  Burrough's  case,  17  Ves.  jun.  267,  cited. 

(«)   Campion  D.  Cotton,  17  Ves.  jun.  263. 

(.c)   Lex  Prsetoria,  272. 

(i/)  Lady  Gorge's  case,  3  Cro.  550,  cited. 

(*148) 


OF  PURCHASES  WITH  TRUST  MONEY.  | -73 

SECTION    111. 
Of  Purchases  with  Trust  Money. 


If  a  trustee,  or  executor,  purchase  estates  with  his  trust- 
money  or  assets,  and  take  the  conveyance  in  his  own 
name,  without  the  trust  appearing  on  the  face  of  the 
deeds,  the  estates  will  not  be  liable  to  the  trusts,  although 
he  die  insolvent,  unless  the  application  of  the  purchase- 
money  can  be  clearly  proved.  And  the  same  principle 
applies  to  a  purchase  by  a  husband  with  trust-money  be- 
longing to  his  wife,  of  which  he  may  have  obtained  pos- 
session from  the  trustee,  whether  with  or  witfiout  the  wife's 
(*)consent(362)  ;  or  to  a  purchase  by  an  agent  or  steward 
with  hionies  remitted  to  him  by  his  principal(z). 

(z)  Bennet  v.  Mayhew,  1  Bro.  C.  C.  232  ;  2  Bro.  C.  C.  287,  cited. 


(362)    See  J\Iethodist  Epis.  Church  v.  Jaques,  1  Johns.  Ch.  Rep.  450. 

Where  the  executor,  or  a  trustee,  becomes  the  purchaser,  he  takes  it 
clothed  with  the  same  trusts  as  it  was  liable  to  in  his  hands  previous  to 
the  sale.  Thus,  in  Bruch  v.  Lantz,  2  Rawle's  R.  392,  where  in  a  sale 
made  by  the  executors  of  the  will,  one  of  the  executors,  became  a  joint 
purchaser,  and  afterwards  became  the  sole  owner  of  the  estate  ;  held, 
that  the  sale  was  voidable  :  for  the  power  in  the  will  constituted  the 
executors  trustees  for  the  devisees  and  heirs  ;  the  general  law-,  with  the 
devise,  trustees  for  the  benefit  of  the  creditors.  Where,  then,  the  ex- 
ecutor becomes  the  purchaser,  he  takes  it  clothed  with  the  same  trusts 
as  it  was  liable  to  in  his  hands  previous  to  the  sale  ;  and  though  ratified 
by  the  devisees  and  heirs,  the  creditors  may  nevertheless  take  the  land 
to  satisfy  their  executions.  Rogers,  J.  observed,  that  "  this  did  not 
contravene  the  principle  of  Grant  r.  Hook,  13  S.  &  R.,  359,  that  where 
the  teftator  authorized  his  executors  to  sell  as  much  of  his  real  estate 
as  should  be  necessary  to  pay  his  debts  and  educate  his  minor  children, 
the  executors  had  power  to  sell  the  real  estate  of  the  testator  free  from 

(*149) 


174 


OF  PURCHASES  WITH  TRUST  MONEY. 


Jn  the  old  cases(«)  the  courts  of  equity  were  much  more 
Strict  in  the  proof  they  admitted  of  the  application  of  the 

(a)  Kirk  v.  Webb,  Prec.  Cha.  84 ;  Heron  v.  Heron,  Prec.  Cha. 
163  ;  Halcot  v.  Markant,  Prec.  Cha.  168  ;  Kendar  v.  Milward,  2  Vern. 
440  ;   Prec.  Cha.  171.     See  Cox  v.  Bateman,  2  Yes.  19. 

the  incumbrance  of  his  debts,  and  the  purchaser  was  not  bound  to  see 
to  the  application  of  the  purchase  money.  And  this  is  doubtless  the  law, 
taken  with  the  qualification,  that  the  purchaser  is  not  buyer  and  seller ; 
for  the  purchaser,  who  is  a  stranger,  is  not  answerable  for  the  miscon- 
duct of  the  executor,  arising  from  a  misapplication  of  the  purchase  mo- 
ney. The  law  regards  the  executor  as  a  fraudulent  trustee,  as  having 
acted  in  contravention  of  public  policy. 

It  seems  immaterial  whether  the  executor  or  administrator  uses  his 
own  money  ;  for  it  is  the  relation,  the  office  and  trust  which  alone  are 
regarded.  Dmves,  Judge,  &c.  v.  Boylsion,  Oct.  T.  1812,  9  Mass. 
337. 

Debt  on  bond,  to  plaintiff,  as  judge  of  Probate,  by  defendant  as  ad- 
ministrator de  bonis  «o/i  with  a  copy  of  the  will  of  Thomas  Boylston, 
late  o{  London,  be  annexed  pursuant  to  statute  of  1785,  c.  12. 

The  action  was  prosecuted  for  the  benefit  of  the  inhabitants  of  Bos- 
ton, named  as  residuary  legatees  in  said  will. 

Seivall,  J. — The  general  question  is,  whether  the  judgment  recovered 
by  the  defendant,  as  administrator  against  one  G.  in  this  state,  so  far  as 
satisfaction  has  been  had,  is  to  be  inventoried  and  accounted  for  by 
defendant,  according  to  the  condition  of  this  bond. — The  defendant  re- 
lies upon  an  assignment  to  himself  of  the  judgment  by  the  assignees  of 
said  Thomas  B.,  &c.  bankrupts. 

The  following  points  were  decided.  1.  That  the  assignees  of  a 
bankrupt  in  England,  cannot  recover,  in  our  courts,  a  debt  due  to  the 
bankrupt,  in  their  own  names.  2.  The  assignment  of  a  chose  in  action 
is  not  defeated  by  the  death  of  the  assignor  ;  but  the  assignor  may  use 
the  name  of  the  executor  or  administrator  ;  and  where  the  assignee 
himself  becomes  afterwards  the  administrator,  he  may  recover  the  same, 
as  administrator,  to  his  own  use. 

3.  If  the  assignees  of  a  bankrupt  deceased,  assign  the  property  of  the 
deceased,  to  his  administrator  ctim  leslamento  annexo,  for  his  own  use 
and  benefit,  he  is  nevertheless  accountable  to  the  creditors  and  others 
entitled  under  the  will.  Seicall,  J.  in  delivering  the  opinion  of  the  Wourt, 
said — Upon  the  whole,  if  it  was  competent  for  defendant  to  purchase  the 
property  in  question  to  his  use,  there  is   sufficient  evidence  of  the  in- 


I 


OF  PURCHASES  WITH  TRUST  MONEY. 


175 


money  than  they  now  are  ;  but  it  was  always  very  clear, 
that  upon  sufficient  proof  of  the  trust-money  having   been 

tention  of  the  assignees  to  sell,  and  of  the  defendant  to  purchase  to  his 
own  use  ;   and  their  contract  must  avail  accordingly. 

But  the  demands  assigned  were  not  recoverable  at  the  time  of  the 
assignment,  but,  by  the  intervention  of  an  administrator  in  this  jurisdic- 
tion, where  the  debts  were  due,  and  the  debtor  was  then  living  ; — nor 
could  the  assignees  themselves  have  recovered  the  demands  to  the  ex- 
clusion of  the  creditors  of  the  deceased  bankrupt  here.  (Doug.  170). 
The  trusts  and  purposes,  for  which  these  demands  had  been  vested  in 
the  assignees  were  then  nearly  fulfilled  ;  and  the  sufficiency  of  the  ef- 
fects to  respond  the  claims  were  then  capable  of  being  ascertained  ; 
and  for  the  surplus  property  they  were  in  effect  the  trustees  of  the  de- 
ceased, and  of  his  representatives  afterwards.  The  defendant  as  admin- 
istrator had  authority  to  enforce  the  execution  of  their  trust ;  and  it  had 
become  his  duty  to  exercise  this  authority  for  the  use  and  benefit  of  the 
creditors  and  legatees  of  the  deceased  testator.  Indeed  the  rights  of  the 
deceased  resulting  upon  the  limitations  upon  the  property  in  (he  hands 
'of  the  assignees,  and  from  their  covenants  to  rcconvey  when  the  trusts 
in  favor  of  the  creditors  had  been  fulfilled,  were  in  the  nature  of  c/ioses 
in  action,  which  had  vested  in  the  defendant  as  administrator.  His  ac- 
ceptance of  the  assignment,  operated  as  a  discharge  of  the  assignees. 
But  it  is  said  that  a  remedy  in  a  case  of  trust  can  be  enforced  only  in 
Chancery.  It  should  be  recollected  that  executors  and  administrators 
are  trustees,  and  amenable  as  such  in  courts  of  law,  as  well  as  in  Chan- 
cery. The  rules  and  principles  respecting  (he  office  and  duty  of  exec- 
utors and  administrators  are,  with  a  few  alterations,  the  same  here  as  in 
England.  The  personal  estate  of  a  testator  or  intestate  vests  in  his  ex- 
ecutor or  administrator,  including  his  bonds,  contracts,  promises,  and 
other  clioses  in  action,  as  well  as  his  goods  and  chattels.  If  they  release 
a  debt  or  contract,  by  which  his  testator  or  intestate  was  entitled  to  a 
sum  of  money  or  other  advantage,  the  release  is  in  his  own  w.'-ong,  and 
he  is  chargeable  for  the  amount  or  value.  If  he  compounds  debts  or 
mortgages,  and  buy  them  in  for  less  than  is  due  upon  them,  the  execu- 
tor or  administrator  is  not  to  have  the  advantage  to  himself;  but  it  be- 
longs to  the  creditors  or  legatees,  or  party  entitled  to  the  surplus.  So, 
if  he  redeems  a  pledge  of  the  testatjr,  it  shall  be  assets  in  his  hands 
to  pay  debts  and  legacies. 

The  principle  in  the  authorities  for  these  positions  is,  (hat  executors, 
&c.,  are  trustees,  who  are  incompetent,  without  the  approval  of  the 
jurisdiction  to  which  they  are  accountable,  to  make  to  themselves  any 
part  of  the  property  in  trust. 


176 


OF  PURCHASES  WITH  TRUST  MONEY. 


laid  out  in  the  purchase  of  the  estate,  a  trust  would  result 
and  be  decreed  accordingly(6)(363).  Parol  evidence  is, 
in  these  cases,  admissible  either  in  the  life-time,  or  after 
the  decease  of  the  trustee  :  but  unless  there  are  corro- 
borating circumstances,  as  a  writing  under  the  trustee's 
hand,  stating  the  application  of  the  money,  or  the  inabili- 
ty of  the  trustee  to  make  the  purchase  with  other  funds(c), 
mere  parol  evidence  of  declarations  supposed  to  be  made 
by  the  purchaser  will  be  received  with  great  caution(364). 

(6)  Anon.  Sel.  Cha.  Ca.  57  ;  Lane  v.  Dighton,  Ambl.  409  ;  Balg- 
ney  v.  Haoiilton,  cited  ibid.  ;  Ryall  v.  Ryall,  1  Atk.  59  ;  Ambl.  413; 
and  see  Earl  of  Plymouth  v.  Hickman,  2  Vern.  167. 

(c)  See  Lench  v.  Lench,  10  Ves.  jun.  511  ;  Wilson  v.  Foreman,  2 
Dick.  693,  as  corrected  by  the  Master  of  the  Rolls,  10  Ves.  jun.  519  ; 
and  see  Anon.  Sel.  Cha.  Ca.  67. 

It  is  immaterial  whether  the  executor  or  administrator  used  in  the 
purchase  his  own  money  :  it  is  the  relation,  the  office  and  trust, 
which  alone  are  to  be  regarded.  The  transaction  if  confirmed,  would 
be  in  itself  a  devastavit.  To  sanction  the  claim  of  the  defendant,  would 
be  to  sanction  a  breach  of  trust. 

The  law  has  wisely  forbidden  trustees  from  acting  in  the  double  ca- 
pacity of  buyers  and  sellers.  But  their  acts  are  not  void  ;  but  voidable 
by  the  cestui  que  trust.  Thus,  in  Den  v.  Knight,  6  Hals.  R.  385,  2  ib. 
175,  where  a  deed  of  conveyance  was  made  by  executors,  who  were 
authorized  to  make  sale  of  the  real  estate  ;  and  they  sold  to  a  third  per- 
son ;  but  with  the  intent  that  the  purchaser  should  reconvey  to  them  ; 
the  Court  considered  the  conveyance  voidable  ;  but  strangers,  and  par- 
ties to  the  deed  or  those  claiming  under  them,  cannot  make  the  objec- 
tion. To  the  same  effect  is  the  case  of  Banks  v.  Judah,  8  Conn.  145, 
which  related  to  the  sale  of  the  capital  stock  of  a  manufacturing  corpo- 
ration :  A  majority  in  interest  agreed  to  sell  ;  and  by  their  agent  sold, 
and  through  an  agent  the  same  proprietors  purchased  ;  and  with  the  pro- 
ceeds formed  a  new  company  :  held,  that  the  sale  might  be  avoided  by 
such  of  the  parties  in  interest  as  were  not  concerned  in  the  transaction. 
Relief,  however  was  not  granted  in  that  case  on  account  of  the  length 
of  time  which  had  elapsed. 

(363)  See  JSIelhodist  Epis.  Church  v.  Jaques,  1  Johns.  Ch-  Rep. 
457.     See  also  Wallace  v.  Duffield,  2  Serg.  &  Rawle,  529. 

(364)  See  Botsford  v.  Burr,  2  Johns.  Ch.  Rep.  412.  and  see  2  Serg. 
&  Rawle,  527. 


OF  PURCHASES  WITH  TRUST  MONEY. 


177 


Where  a  trustee  or  agent  is  bound  hy  the  trust  to  lay 
out  the  money  in  land,  if  he  lay  it  out  accordingly,  it  will 
be  presumed  to  have  been  done  in  execution  of  the 
trust(c^): 

But  if  a  trustee  has  considered  himself  entitled  to  the 
trust-money  for  his  own  benefit,  no  presumption  can  be 
raised  in  opposition  to  this  fact,  that  he  intended  any 
lands  he  may  have  bought  with  the  trust^money  to  be 
subject  to  the  trust(e). 

(*)Here  we  may  introduce  a  case,  where  a  man,  on  his 
marriage,  contracted  to  assure  all  such  personal   estate  as 
he  should,  during  the  joint  lives  of  himand  his  wife,  be 
possessed  of,  upon  certain   trusts.      He  purchased   a   real 
estate,  for  which   he  paid   partly  out  of  his  own  monies, 
and   partly  out  of   monies  borrowed  on  his  personal  se- 
curity.    It  was  insisted,  that   the  real  estate  was  bound 
by  the  trusts  :   but   Lord   Eldon  determined,  that  it  be- 
longed to  the  heir,  but  chai*ged  for  the  benefit  of  the  per- 
sons claiming  under  the  trust,  with   the  purchase-money 
paid   by   the   husband   out  of  his  own  funds  and  lasting 
improvements  on  the   estate  ;  and  also  with  the  money 
borrowed,   which  he  in  his  life-time  paid  off  out  of  his 
personal  estate,  and  the  estate  was  held  the  primary  fund 
for  payment  of  the  money  borrowed.     In  this  case  it  will 
be    seen    that    the  application  of  the  settled    fund  was 
clearly  traced,  for  all   the   husband's  personal  estate  was 
bound    by  the    settlement ;  and    the  only  question  was, 
whether  the  cestui  que  trust  should  have  the  estate,  or  the 
trust-fund  laid  out  in  the  purchase  of  it(f). 

{d)   See  the  cases  in  Sect.  4,  infra. 

(e)  Perry  v.  Phelips,  4  Ves.  jun.  lOS  ;  17  Ves.  jiin.  173  ;  and  see 
Cox  V.  Paxton,  17  Ves.  jun.  329  ;  Savage  v.  Carroll,  1  Ball  &  Beatty, 
265  ;  supruy  Vol.  1,  p.  180. 

(/)  Lewis  r.  Madocks,  8  Ves.  jun.  150;  17  Ves.  jun.  48.  See 
Denton  i-.  Davies,  18  Ves.  499. 

VOL.    M.  23  (^l.'iO) 


178 


OF  THE  PERFORMANCE  OF  COVENANTS 


SECTION  IV. 


Of  the  performance  of  a  Covenant  to  purchase  and  settle 

an  estate. 


Where  a  man  covenants  to  purchase  and  settle,  or, 
having  no  real  estate,  to  convey  and  settle  lands,  and  after- 
wards accordingly  purchases  lands  of  equal  or  greater 
value,  but  neglects  to  settle  them,  yet  they  shall  be  held 
to  have  been  purchased  with  an  intent  to  perform  the 
(*)covenant,  and  shall  accordingly  go  in  performance  of 
it(^),  and  the  heir  must  give  up  the  estate,  although  he  is 
not  the  person  entitled  to  the  benefit  of  the   covenant(/i). 

It  is  even  a  general  rule  in  equity,  that  where  a  man 
covenants  to  do  an  act,  and  he  does  that  which  may  pro 
tanto  be  converted  to  a  completion  of  the  covenant,  he 
shall  be  presumed  to  have  done  it  with  such  intention(i). 
Therefore,  where  the  covenantor  has  purchased  lands,  but 
not  of  sufficient  amount  to  wholly  perform  the  covenant, 
yet  they  shall  go  in  performance  of  it  as  far  as  they  will 
extend(A:).  It  may  not  be  possible  to  lay  out  all  the 
money  in  one  purchase  ;  but  that  is  not  a  sufficient  reason 
why  the  estates  actually  purchased  should  descend  to  the 
heir  at  law  for  his  own  benefit,  to  the  entire  ruin,  perhaps, 
of  the  rest  of  the  family. 

(g-)   Wilcocks  V.  Wilcocks,  2  Vein.  558  ;  Deacon  v.  Smith,  3  Atk. 
323. 

Qi)  Garthshore  v.  Chalie,  10  Ves.' jun.  9. 

(j)   See  Sowden  v.  Sowden,  Cox's  n.  3  P.  Wms.  228. 

\k)  Lechmeret).  Earl  of  Carlisle,  3  P.  Wms.  211;  For.  80;  MS. 
App.  No.  24,  a  fuller  note  of  this  part  of  Lord  Talbot's  judgment ; 
Whorwood  v.  Whorwood,  1  Ves.  540 ;  Sowden  v.  Sowden,  3  P.  Wms. 
228,  n.  ;  1  Bro.  C.  C.  682.  See  4  Ves.  jun.  116,  117;  10  Ves.  jim. 
9.  516  ;  Gardner  v.  Lord  Townsend,  Coop.  301. 
(*151) 


TO  PURCHASE  ESTATES.  i  «q 

The  like  principle  has  been  extended  to  a  case  where 
the  covenantor  was  io  pay  the  money  to  trustees,  to  be  by 
them  laid  out  in  the  purchase  of  estates(/). 

It  is  not  material  in  these  cases,  that  the  purchase  was 
to  be  made  with  the  consent  of  persons  whose  consent 
was  never  even  applied  for(m),  or.  within  a  limited  time, 
and  the  purchase  was  not  made  till  after  the  expiration  of 
the  time  appoint ed(w).  Nor  is  it  important  that  there 
was  a  subsisting  mortgage  on  the  estate,  upon  which  the 
covenantor  took  up  money  from  another  person  in  order 
to  enable  him  to  complete  the  purchase(o).  And  it  will 
('*)not  vary  the  case,  that  the  covenantor  had  an  option  to 
settle  a  rentcharge  instead  of  the  lands  themselves,  unless 
he  have  shown  an  intention  to  avail  himself  of  his  right 
to  elect(y;). 

But  where  a  clear  intent  appears  to  lay  out  the  entire 
sum  in  the  future  purchase  of  lands,  estates  of  which  the 
covenantor  was  seised  at  the  time  of  the  covenant,  and 
which  he  permitted  to  descend,  cannot  go  in  performance 
of  the  agreement,  because  such  clearly  could  not  have 
been  his  intention(9). 

And,  to  enure  as  a  performance,  the  property  purchased 
must  be  such  as  will  answer  the  intent  of  the  settle- 
ment(r).  Therefore,  under  a  covenant  to  purchase  fee- 
simple  lands  in  possession,  estates  in  reversion,  expectant 
upon  lives  will  not  go  in  performance(s),  unless,  perhaps, 

(/)  Sowden  v.  Sowden,  1  Bro.  C.  C.  582. 

(m)  Lechmere  v.  Earl  of  Carlisle,  ubi  sup. 

In)   S.  C.  ;  and  see  3  Atk.  329. 

(o)   Deacon  v.  Smith,  3  Atk.  323. 

(;})   Deacon  v.  Smith,  3  Atk.  323. 

(q)  Lechmere  v.  Earl  of  Carlisle,  For.  80,  el  ubi  sup.      See  Davys 
V.  Howard,  5  Bro.  P.  C.  552, 

(>•)  See  Lewes  v.  Hill,  1  Ves.  274. 

(s)  Lechmere  v.  Earl  of  Carlisle,  3  P.  Wms.  211  ;  Deacon  v.  Smith, 
3  Atk.  323 ;  Whorwood  v.  Whorwood,  1  Ves.  540. 

(*152) 


180 


OF  THE  PERFORMANCE  OF  COVENANTS 


they  fall  into  possession  in  the  covenantor's  life-time  ; 
neither  will  leaseholds  for  lives,  nor  terms  of  years,  even 
with  covenants  to  purchase  the  fee,  go  in  performance,  as 
they  cannot  descend  to  the  heir(/). 

So  a  moiety  of  a  house  would  not  be  considered  a  kind 
of  property  within  a  covenant  to  purchase  lands  of  inherit- 
ance :  nor  would  lands,  having  a  different  descent,  as 
borough  English  lands,  which  descend  to  the  youngest  son, 
instead  of  lands  descendible  to  the  eldest  son,  according  to 
the  course  of  the  common  law(w).  Neither  will  copyhold 
estates  go  in  part  performance  of  a  covenant  to  purchase 
freehold  lands,  where  the  nature  of  the  tenure  would  pre- 
vent compliance  with  the  terms  of  the  settlement,  as  where 
the  estate  is  to  be  settled  on  one  for  life  without  impeach- 
ment (*)of  waste(x).  But  where  this  circumstance  does 
not  occur,  copyhold  estates  may,  it  should  seem,  go  in 
part  performance  of  a  covenant  to  purchase  real  es- 
tates(?/),  although  Lord  Hardwicke  seems  to  have  doubt- 
ed whether  copyhold  lands  could  go  in  performance,  as 
they  are  liable  to  different  tenures  and  to  forfeiture(2). 

Where  the  purchase  was  made  bona  fide  with  an  intent 
to  perform  the  covenant,  the  lands  must,  it  is  conceived, 
in  most  cases  be  taken  at  the  price  paid  for  them(«),  or 
at  least  at  their  value  at  that  time.  This  construction, 
however,  is  not  made  to  the  prejudice  of  purchasers,  for 
if  the  covenantor  sell  the  estates,  it  will  be  evidence  of  his 
intention  that  they  should  not  be  bound  by  the  settlement, 
and  therefore  they  could  not  be  followed  in  the  hands  of 

{I)    Lechmere  v.  Earl  of  Carlisle,  ubi  sup. 

(«)   Pennill  v.  Hallett,  Ambl.  106. 

{x)    Pennill  v.  Hallett,  Ambl.  106. 

(j/)  Wilks  V.  Wilks,  5  Vin.  Abr.  293,  tbl.  39.  Note,  the  covenant 
was  generally  to  purchase  lauds. 

{z)  Whorwood  v.  Whorwood,  1  Vcs.  540. 

(o)  Lechmere  v.  Earl  of  Carlisle,  For.  80.  See  and  consider  Pen- 
nill r.  Hallett,  Ambl.  106. 

(*163) 


TO  PURCHASE  ESTATES.  |g| 

the  purchaser(6).  But  it  is  no  objection  in  these  cases 
that  the  arrangement  will  affect  specialty  creditors,  for  it 
is  in  the  power  of  the  owner  of  the  estate  to  prefer  one 
specialty  creditor  to  another,  because  none  of  them  have 
any  specific  lien  on  the  lands(c). 

It  may  be  considered  as  a  general  rule,  although  it  may 
,  not  hold  universally  true,  that  a  covenant  to  convey  and 
s  settle  lands,  will  not  be  a  specific  lien  on  the  lands  of  the 
covenantor,  but  the  covenantee  will  be  a  creditor  by  spe- 
cialty. In  one  case,  where  a  man  gave  a  bond,  before 
marriage,  to  convey  sufficient  freehold  or  copyhold  estates, 
to  raise  600/.  per  annum,  for  his  intended  wife,  in  bar 
of  dower,  she  was  decreed  to  be  a  creditor,  by  specialty  of 
her  husband,  and  to  be  entitled  to  be  paid  the  arrears 
of  her  annuity  out  of  his  personal  estate,  in  a  course  of 
administration  ;  and  if  the  same  should  not  be  sufficient, 
(*)then  out  of  the  real  estates  of  which  he  died  seised  in 
fee-simple,  and  if  those  should  not  be  sufficient,  then  out  of 
the  real  estates  in  settlement  of  which  he  was  tenant  in  tail, 
provided  such  deficiencies  did  not  exceed  the  amount  of  the 
dower  which  she  would  have  been  entitled  to  thereout, 
in  case  she  had  not  accepted  the  annuity  for  her  life,  as 
(tforesaid(d).  Lord  Thurlow,  in  a  subsequent  stage  of 
the  cause,  said,  that  the  Court  had  charged  the  real,  in 
aid  of  the  personal,  by  a  very  subtle  equity,  because,  if 
she  had  not  made  a  contract  of  forbearance  of  dower, 
the  entailed  estate  would  have  been  liable  to  her  dow- 
er(366). 

{h)   Smith  V.  Deacon,  3  Atk.  323. 

(c)  S.  C. 

(d)  Forster  v.  Forster,  3d  Feb.  1787,  MS.  See  3  Bro.  C.  C.  490. 
Consider  now  the  operation  of  the  3  &  4  Will.  4,  c.  106. 

(366)  The  husband,  by  an  ante-nuptial  agreement,  in  consideration  of 
his  intended  wife's  fortune,  covenanted  to  charge  his  whole  estate  with 
a  certain  sum,  as  a  settlement  on  her  and  the  children  of  the  marriage  ; 

(*164) 


182  °^  "^^^  PERFORMANCE  OF  COVENANTS,  &c. 

— He  received  her  fortune,  and  died  insolvent  ; — Afterwards,  an  addi- 
tional part  of  her  fortune,  unexpectedly,  came  into  the  hands  of  his  ex- 
ecutors ; — In  such  case,  as  the  husband  would  have  been  entitled  to 
the  monies  in  the  hands  of  the  executors,  had  he  been  alive,  a  court  of 
equity  will  protect  the  rights  of  the  wife  acquired  by  virtue  of  the  agree- 
ment, against  the  claims  of  creditors  ;  and  direct,  that  the  funds  thus 
in  the  hands  of  the  executors,  be  first  applied  to  make  up  the  sum 
charged  on  the  husband's  estate,  for  the  benefit  of  the  wife.  Games 
v.  Smith,  2  Des.  299. 


[  183  ] 


(*)CHAPTER  XVI. 

or  THE  PROTECTION  AND  RELIEF  AFFORDED  TO  PUR- 
CHASERS BY  STATUTES,  AND  BY  THE  RULES  OF 
EQUITY. 


In  the  former  chapters  an  attempt  has  been  made  to  trace 
the  purchase  from  its  inception  by  contract,  to  its  comple- 
tion by  conveyance  ;  the  subjects  which  may  be  said  to 
arise  out  of  the  conveyance  have  been  treated  of;  and  it 
has  been  considered  who  are  incapable  of  purchasing 
estates.  Let  us  now  suppose  the  purchase  to  be  com- 
pleted, and  proceed  to  inquire  to  what  protection  and 
relief  purchasers  are  entitled.  The  protection  and  relief 
afforded  to  purchasers  appear  to  arise  either  from  positive 
statutes,  or  from  the  rules  of  equity.  The  common  law 
hath,  indeed,  done  all  which,  from  its  peculiar  nature,  it 
can  do  in  support  of  the  claims  of  bona  fide  purchasers  ; 
for  we  are  told,  that  the  maxims  of  the  common  law, 
which  refer  to  descents,  discontinuances,  non-claims,  and 
to  collateral  warranties,  are  only  the  wise  arts  and  intentions 
of  the  law  to  protect  the  possession,  and  strengthen  the 
rights  of  purchasers(«).  Lord  Mansfield  indeed  held,  that 
in  every  case  between  purchasers  for  valuable  considera- 
tion, a  court  of  equity  must  follow^  and  not  lead  the  law. 
And  the  rules  of  equity  were,  in  his  time,  pretty  generally 
adopted  in  the  courts  of  law(6).     It  could  not  long  escape 

(a)  Finch,  104.  See  Bac.  on  Uses,  36.  They  are  now  mostly 
allered  by  the  late  statutes. 

(t)  Keech^  r.  Hall,  Dougl.  22  ;  Weakley  v.  Bucknell,  Cowp.  473. 
This  practice  did  not  escape  the  inquiring  eye  of  Junius  ;  see  vol.  2. 
41,  384. 

(*155) 


OF  PROTECTION  FROM 


184 

observation,  that  from  the  peculiar  constitution  of  this 
(*)country,  the  rules  of  law  and  equity  ought  ever  to  con- 
tinue distinct ;  and  accordingly  all  the  great  Judges  who 
have  succeeded  Lord  Mansfield  have  determined  that  the 
legal  estate  must  prevail  at  law(c).  We  need,  therefore, 
only  consider,  first,  the  statutes  which  have  been  passed 
for  the  protection  or  relief  of  purchasers  :  and,  secondly, 
the  rules  of  equity  in  favor  of  purchasers. 


SECTION  T. 

Of  fraudulent  and  voluntary  Settlements,  and  Settlements    ■  ^ 
with  Powers  of  Revocation. 


I.  First  then.  By  27  Eliz.  c.  4.(f/)  it  is  enacted,  that 
all  conveyances,  grants,  &c.  out  of  any  lands,  tenements, 
or  other  hereditaments,  to  be  had  or  made  for  the  intent 
and  of  purpose  to  defraud  and  deceive  such  persons  as 
shall  purchase  the  same  lands,  tenements,  or  other  here- 
ditaments, so  formerly  conveyed,  granted,  Sic.  or  any  rent, 
profit  or  commodity,  in  or  out  of  the  same,  shall  be  deemed 
and  taken  only  as  against  such  persons  and  their  repre- 
sentatives as  should  so  purchase  for  money  or  other  good 
consideration,  the  same  lands,  tenements,  or  other  here- 
ditaments, or  any  rents,  profits,  or  commodity  in  or  out 
of  the  same,  to  be  utterly  void. 

But  it  is  provided,  that  the  act  shall  not  extend  to  make 

(c)  See  5  East,  138  ;  6  Ves.  jun.  174  ;  3  Bos.    &  Pull.  162  ;  and 
1  Scho.  &  Lef.   66  ;   Doe  r.  Morris,  1  Taunt.  62. 

(d)  Made  perpetual  by  30  Eliz.  18,  s.  3. 
(*156) 


VOLUNTARY  ^SETTLEMENTS. 


185 


void  anj  conveyance,  &c.  to  he  made  for  good  considera- 
tion, and  bona  fine,  to  any  person. 

And  it  is  also  enacted,  that  if  any  person  shall  make 
any  conveyance,  &c.  of  any  lands,  tenements  or  heredita- 
ments, with  any  clause  of  revocation  or  alteration  at  his 
(*)pleasure  of  such  conveyance,  &c.  and  shall  afterwards 
sell  the  same  to  any  person  or  persons  for  money  or  other 
good  consideration  paid  or  given  (the  said  first  conveyance, 
&c.  not  being  revoked  according  to  the  power  reserved 
by  the  said  secret  conveyance,  &c.),  then  the  said  first  con- 
veyance, &:c.,  as  touching  the  lands,  tenements,  and  here- 
ditaments so  after  sold,  against  the  vendees,  &c.  shall  be 
deemed  and  be  void,  and  of  none  effect ;  provided  that 
no  bona  fide  mortgage  should  be  affected  by  the  Act. 

To  take  advantage  of  this  statute,  a  person  must  have 
purchased  bona  fide  and  for  a  valuable  consideration(367), 
but  the  Court  will  not  enter  into  the  adequacy  of  the  con- 
sideration, unless  it  was  so  small  as  to  be  palpably  fraudu- 
lent(e)(3t)8).  Whatever  consideration  would  be  sufficient 
to  support  an  original  settlement  will  be  sufficient  to  avoid 
a  prior  voluntary  one.  The  subject  of  the  sale  must, 
however,  be  an  existing   lawful  interest.     Thus  in  a  case 

(e)  Upton  V.  Bassett,  Cro.  Eliz.  444  ;  Doe  v.  Routledge,  Cowp. 
705  ;  Needham  v.  Beaumont,  3  Rep.  83,  b ;  2  And.  233  ;  Doe  v. 
Routiedge,  Cowp.  705.  See  Bullock  f.  Sadlier,  Ambl.  764  ;  Hill  v. 
bishop  of  Exeter,'2  Taunt.  69  ;  Doe  v.  James,  16  East,  212.  See  1 
Ves.  &  Beam.  184;  Treatise  of  Powers,  4th  edit.  p.  418. 

(367)  See  Jackson  v.  Henry,  10  Johns.  Rep.  185,  197.  Anderson 
V.  Roberts,  on  appeal,  18  Johns.  Rep.  515.  Contra,  S.  C.  3  Johns. 
Ch.  Rep.  371.  Preston  v.  Crofut,  1  Conn.  Rep.  527,  in  note.  Sler- 
ry  V.  Arden,  1  Johns.  Ch.  Rep.  261,  267  ;  and  see  Anon.  2  Des.  304. 
Taylor  v.  Heriot,  4  Des.  227,  232.  See  also,  Jackson  v.  Ham,  15 
Johns.  Rep.  263.     Seiton  v.  Whcaton,  8  Wheat.  229. 

(368)  See  Hildreth  v.  Hands,  2  Johns.  Ch.  Rep.  35.  S.  C.  on  ap- 
peal, 14  Johns.  Rep.  493.  Boijd  v.  Dunlap,  1  Johns.  Ch.  Rep.  478. 
Sterry  v.  Arden,  1  Johns.  Ch.  Rep.  267.  S.  C.  on  appeal,  12  Johns. 
Rep.  536. 

VOL.   II.  24  (*157} 


186 


OF  PROTECTION  FROM 


mentioned  by  Sir  Edward  Coke,  in  his  commentary  on 
Littleton (/),  A.  had  a  lease  of  certain  lands  for  sixty 
years,  if  he  lived  so  long,  and  forged  a  lease  for  ninety 
years  absolutely,  and  he  by  indenture  reciting  the  forged 
lease,  for  valuable  consideration,  bargained  and  sold  the 
forged  lease,  and  all  his  interest  in  the  land  to  B.  Sir 
Edward  Coke  adds,  that  it  seemed  to  him  that  B.  was  no 
purchaser  within  the  statute  of  27  Eliz.,  for  he  contracted 
not  for  the  true  and  lawful  interest,  for  that  was  not  known 
to  him  ;  for  then  perhaps  he  would  not  have  dealt  for  it. 
and  the  visible  and  known  term  was  forged  ;  and  although 
by  general  words  the  true  interest  passed,  notwithstand- 
ing he  gave  no  valuable  consideration,  nor  contracted  for 
(*)it.  And  of  this  opinion  were  all  the  Judges  in  Sergeant's 
Inn.     It  is,  however,  a  very  narrow  construction. 

In  the  construction  of  this  Act  it  hath  been  holden,  that 
although  the  fraudulent  conveyance  is  not  made  by  the 
vendor  himself,  yet  it  is  void  against  a  purchaser.  There- 
fore, if  a  father  make  a  fraudulent  lease,  and  then  die,  and 
the  person  claiming  under  him  sell  the  estate,  the  pur- 
chaser shall  avoid  the  lease,  whether  the  vendor  did  or 
did  not  know  of  its  existence(^). 

And  the  statute  being  general,  and  made  to  suppress 
fraud,  extends  to  fraudulent  conveyances  to  the  King. 
Therefore,  in  the  case  of  Magdalen  College(/i),  it  was 
resolved  by  Lord  C.  J.  Coke,  that  if  tenant  in  tail  be  seised 
of  land,  the  remainder  over  in  tail  or  in  fee,  and  he  in  re- 
mainder knowing  the  tenant  in  tail  will  alien  the  land,  and 
by  recovery  bar  his  remainder,  to  the  intent  to  deprive  the 
tenant  in  tail  of  his  birthright,  and  the  power  which  the 
law  gives  him  to  bar  the  remainder,  and  on  purpose  and 
with  intent  to  deceive  the  purchaser,  grants  his  remainder 

(/)   Co.  Litt.  3,  b.      See  Hatton  v.  Jones,  Bull.  N.  P„  90. 
(g)   Burrell's  case,  6  Rep.  72  ;  Jones  v.  Groobham,  Co.  Litt.  3  b. ; 
Warburton  v.  Loveland,  1  Dow.  &  Clark,  497. 
(/»)  11  Rep.  66, 
(*168) 


VOLUNTARY  SETTLEMENTS.  1017 

to  the  Queen  by  deed  enrolled,  and  afterwards  tenant  in 
tail,  for  a  valuable  consideration,  aliens  the  land  by  a 
common  recovery,  and  dies  without  issue,  the  purchaser 
shall  enjoy  the  lease  against  the  Queen,  by  the  statute  of 
Elizabeth.  And  of  such  opinion  was  Popham,  C.  J.  open- 
ly in  the  Exchequer  Chamber.  This  is  a  very  important 
resolution,  and  shows  in  the  strongest  view,  how  liberal  a 
construction  this  statute  hath  received,  for  the  Queen  was 
not  a  party  to  the  fraud,  and  by  her  prerogative  at  com- 
mon law  the  reversion  in  her  could  not  be  affected  by  a 
common  recovery(z). 

(*)It  hath  been  determined(/c),  that  notice  to  a  pur- 
chaser of  a  fraudulent  conveyance  is  of  no  consequence, 
for  the  statute  makes  it  absolutely  void(369). 

A  conveyance  for  payment  of  debts  generally,  to  which 
no  creditor  is  a  party,  nor  any  particular  debts  expressed, 
is  a  fraudulent  conveyance  within  this  statute,  against  a 
subsequent  purchaser  for  valuable  consideration(/). 

But  if  the  conveyance  were  made  with  an  honest  intent, 
and  the  purchaser  had  notice  of  the  trust,  it  seems  that 
he  will  not  be  relieved  against  it(»i).  And  upon  the 
whole,  as  Mr.  Roberts  justly  remarks(w),  these  are  cases 
of  such  danger  to  purchasers,  that  a  prudent  adviser  can 
hardly  recommend  a  title  which  has  been  at  all  the  sub- 
ject of  arrangements  for  the  payment  of  debts  remaining 
unsatisfied(370). 

(i)  See  "Wiseman's  case,  and  Chomley's  case,  2  Rep.  15.50;  and 
see  2  Ro.  Abr.  393,  T.  Recoverie  Common  ;  see  3  &  4  Will.  4,  c.  74. 

(fc)   Gooch's  case,  5  Co.  60,  a. 

{I)  Leech  v.  Leech,  1  Cha.  Ca.  249.  See  Wallwyn  v.  Coutts,  3 
Mer.  707. 

(m)  Langton  r.  Tracy,  2  Cha.  Rep.  16.  See  Stevenson  v.  Hay- 
ward,  Prec.  Cha.  310. 

(n)  Vol.  Conv.  335. 


(369)  See  Sterry  v.  Arden,  1  Johns.  Ch.  Rep.  268-. 

(370)  Sec  Dey  v.  Dunham,  2  Johns.  Ch.  Rep.  189,  et  seq. 

(*159) 


188 


OF  PROTECTION  FROM 


II.  It  has  in  numerous  crises  been  holden,  that  volun- 
tary setlements  are  within  the  meaning  of  the  Act,  al- 
thon"h  the  purchaser  had  direct  notice  of  the  settlement 
at  the  time  of  his  purchase.  This  doctrine  has,  however, 
been  frequently  questioned,  but  appears  to  have  been  in- 
controvertibly  settled  by  the  case  of  Taylor  v.  Stile(o), 
which  arose  in  Yorkshire(371). 

In  that  case,  A.  settled  lands,  after  his  marriage,  on  his 
wife  for  life,  and  then  sold  the  lands  to  5.,  who  had  notice 
of  the  wife's  estate  for  life,  and  took  counsel's  opinion  on 
the  point.  A.  died,  and  his  wife  brought  her  bill  to  be 
let  into  her  life  estate.  Lord  Northington  held  the  law  to 
be  clear,  that  a  subsequent  purchaser  for  a  valuable  con- 
sideration, (*)though  with  notice,  should  set  aside  a  volun- 
tary settlement;  but  it  being  suggested  that  there  was  no 
valuable  consideration,  an  issue  w^as  directed  to  try  that 
fact,  which  coming  on  before  Mr.  Justice  Bathurst,  at 
York,  he  suffered  the  counsel  to  enter  into  the  equity  ; 
and  after  hearing  the  argument,  said,  he  knew  Lord  Hard- 
wicke  had  determined,  in  twenty  instances,  in  the  same 
manner  as  Lord  Northington.  The  consideration  was 
proved,  and  the  case  came  on  to  be  heard  before  the 
Chancellor  on  the  equity  reserved,  who  thereupon  dis- 
missed the  bill. 

And  in  a  recent  case.  Lord  Chief  Justice  Mansfield 
held,  that  the  Court  could  not,  without  overturning  the 
settled  and  decided  law,  hold  that  the  prior  voluntary  con- 
veyance could  defeat  a  conveyance  to  a  purchaser  for  a 
valuable  consideration(/?).  The  point  has  been  recently 
decided  the  same  way  by  the  Court  of  Exchequer(9),  and 

(o)  Chancery,  1763,  MS.  ;  and  see  Evelyn  v.  Templar,  2  Bro..  C. 
C.  148. 

(p)  Doe  V.  Martyr,  1  New  Rep.  332. 
{q)   Doe  t'.  Hopkins,  9  East,  70,  cited. 

(371)   See  Sterry  v.  ^rde.n,    1  .Johns.  Ch.    Rep.  270.    S.  C.  on    ap- 
peal, 12  Johns.  Rep.  536.. 
f*]60> 


VOLUNTARY  SETTLEMENTS.  ]  g9 

since  that,  bj  the  Court  of  King's  Bench(r),  although  in 
the  last  case  the  purchaser  had  notice  of  the  settlement ; 
and  upon  a  trial  at  nisi  prius,  Mr.  Justice  Heath  attached 
some  importance  to  the  circumstance  of  notice,  and  the 
jury  found  for  the  defendants  claiming  under  the  settle- 
ment, conceiving,  as  I  am  told,  the  settlement  not  to  be 
!  fraudulent  within  the  statute,  though  voluntary.  In  a  still 
\  later  case,  the  rule  was  again  confirmed  by  the  Court  of 
Common  Pleas(5).  Nor  will  a  purchaser  be  affected  by  a 
covenant  in  the  settlement,  that  the  purchase-money  should 
be  paid  to  trustees,  to  be  laid  out  by  them  in  other  lands 
to  be  settled  to  the  same  uses(0. 

But  a  deposit  of  the  title-deeds  by  a  settler  after  a 
(*)voluntary  settlement,  will  not  prevail  at  law  against 
the  settlement ;  trover  may  be  maintained  for  the  deeds. 
The  Court,  in  the  case(M)  in  which  this  point  arose,  ob- 
served, that  upon  the  deposit  of  the  deeds  the  defendants 
required  no  more  than  a  right  to  go  into  a  Court  of 
Equity  to  compel  a  legal  conveyance.  The  language  of 
the  statute  clearly  specifies  a  purchaser ;  and  how  could 
they  say  that,  upon  a  mere  deposit  of  deeds  entitling 
the  party  perhaps  to  apply  to  a  Court  of  Equity,  he  be- 
comes, in  the  language  of  the  act,  a  purchaser  either  in 
fee-simple,  fee-tail  for  life,  lives  or  years  ? 

Here  it  will  be  proper  to  consider,  what  is  a  voluntary 
settlement,  and  what  will  be  deemed  a  valuable  consi- 
deration within  the  act,  so  as  to  protect  a  settlement 
against  subsequent  purchasers. 

Any   conveyance   executed  by   a  husband  in  favor  of 

()•)  Doe  V.  Manning,  9  East,  59. 

(«)  Hill  V.  Bishop  of  Exeter,  2  Taunt.  69  ;  and  see  18  Ves.  jun. 
\4l,per  Sir  Wm.  Grant ;  and  see  Gully  v.  Bishop  of  Exeter,  10  Barn. 
&  Cress.   601. 

{t)  Eveiyn  v.  Templar,  2  Bro.  C.  C.  148.  See  18  Ves.  jun.  91. 
93.  112. 

(u)   Kerrison  r.  Dorricn,  9  Bingh.  76  ;  2  Moo.  &  Scott,  114. 

(*161; 


190  "^  PROTECTION  FROM 

l)is  wife  or  children,  after  marriage,  which  rests  wholly 
on  the  moral  duty  of  a  husband  or  parent  to  provide  for 
his  wife  and  issue,  is  voluntary,  and  void  against  pur- 
chasers by  force  of  the  ?ict(v)(372). 

But  a  purchase  in  the  name  of  a  wife  or  child  is  not 
within  the  intention  of  the  act,  and  consequently  cannot 
be  defeated  by  a  subsequent  purchaser(a;)(373)  :  and  on 
the  ground  of  policy,  it  seems  that  a  settlement  by  a  wid- 
ow, previously  to  her  second  marriage,  of  her  estate  on 
the  children  of  the  first  marriage,  will  not  be  deemed 
fraudulent(?/)(374). 

And  a  settlement  made  on  a  wife  or  children,  prior  to 
marriage,  is  a  conveyance  for  valuable  consideration,  by 
reason  of  the  marriage  itself(2),  but  a  settlement  after  a 
(*)marriage  in  Scotland,  will  not  be  deemed  a  settlement 
upon  valuable  consideration,  although,  subsequently  to  it, 
the  marriage  is  re-celebrated  in  England(a)(375). 

(D)Woodie's  case,  cited  in  Colvile  v.  Parker,  Cro.  Jac.  158  ;  Good- 
right  tJ.  Moses,  2  Blackst.  1019;  Chapman  v.  Emery,  Cowp.  278; 
Evelyn  v.  Templar,  2  Bro.  C.  C.  148.  See  Parker  v.  Serjeant,  Finch, 
146. 

{x)   Sitpra,  ch.  15,  s.  2,  div.  11. 

{y)  Newstead  v.  Searles,  1  Atk.  2G5.  See  Cowp.  280 ;  Cotton  v. 
King,  2  P.  Wms.  674. 

(z)  Colvile  V.  Parker,  Cro.  Jac.  158  ;  Douglass  v.  Ward,  1  Cha.  Ca. 
99  :  Brown  v.  Jones,  1  Atk.  188. 

(a)  Ex  parte  Hall,  1  Ves.  &  Beam.  112. 

(372)  See  Rundle  v.  Murgatroyd's  Ass.  4  Da^l.  304.  ;  and  note,  p. 
305.  Reade  v.  Livingston,  3  Johns.  Ch.  Rep- 488.  Bayard  v.  Hoff- 
man,  4  Johns.  Ch.  Rep.  450.  But  a  settlement  after  marriage,  made 
in  pursuance  of  a  valid  ante-nuptial  agreement,  is  good.  Reade  v.  Liv- 
ingston, ut  supra. 

(373)  See  Livingston  v.  Livingston,  2  Johns.  Ch.  Rep.  539,  et  seq. 

(374)  See  Pledger  v.  David's  Admrs.  4  Des.  264. 

(375)  See  Slerry  V.  Arden,  1  Johns.  Ch.  Rep.  261.  Verplank  v. 
Sterry,  on  appeal,  14  Johns.  Ch.  Rep.  536.  Bradish  v.  Gibbs,  3  Johns. 
Ch.  Rep.  550.  Tunno  v.  Trezevant,  2  Des.  264,  269,  The  case  of 
Greenhoio  v.  Coutts,  4  Hen.  &  Munf.  486,  is  an  exception  to  the  gen- 
eral rule. 

-  (*162) 


VOLUNTARY  SETTLEMENTS. 


191 


The  marriage  consideration  runs  through  the  whole  set- 
tlement, as  far  as  it  relates  to  the  husband,  and  wife,  and 
issue(6).  Whether  the  marriage  consideration  will  extend 
to  remainders  to  collateral  relations,  so  as  to  support  them 
aginst  a  subsequent  sale  to  a  bona  fide  purchaser,  is  a 
subject  which  has  been  frequently  discussed(c). 

In  a  case  in  Lane(^),  it  is  stated  to  have  been  held,  that 
"if  a  man  doth,  in  consideration  that  his  son  shall   marry 
the  daughter  of  B.,  covenant  to  stand  seised  to  the  use  of 
the  son,  for  life,  and  after  to  the  use  of  other  his  sons,  in 
reversion  or  remainder  ;  these  uses,  thus  limited  in  remain- 
der, are  fraudulent  against  a  purchaser,  though  the  first 
be  upon  good  consideration,  viz.  marriage." — In  this  case, 
therefore,  although  the  settler  was  under  a  moral   obliga- 
tion to  provide  for  his  sons,  yet  the  remainders  were  not 
held  good.     They  were,  it  will  be  observed,  to  take  effect 
after  a  vested  estate  for  life  only.     The  case  of  Jenkins  v. 
Keymis(e)  has  sometimes  been  considered  a  case,  where 
the  consideration  of  a  marriage,  and  marriage  portion,  was 
held  to  run  through   all  the  estates  raised  by  the  settle- 
ment   on    the    marriage,  though    the    marriage  was  not 
concerned    in  them(f).      The  point,  however,  was  not 
decided.     It  was  merely  the  inclination  of  Hale's  opinion. 
It  was  not  necessary  to  decide  the  point,  for  Sir  Nicholas 
was  tenant  for  life,  and  Charles  tenant  in  tail,  with  remain- 
ders over ;  the  concurrence  of  both,  therefore,  was  essen- 
tial to  give  effect  to  the  settlement,  which  brings  it  within 
(*)the  rule  laid  down  in  Roe  v.  Mitton(^,g'J.     Besides,  the 
son  paid  to  his  father  the  portion  which  he  received  with 

(6)   Nairn  v.  Prowse,  6  Ves.  jun.  752. 
(c)  See  6  Ves.  jun.  750  ;   18  Ves.  jun.  92. 

(rf)   Lane,  22  ;  and   see  2  Ro.  Rep.  306  ;  Jason  v.  Jervis,   1  Vern. 
286. 

(e)   1  Lev;  150.  237  ;   1  Cha.  Ca.  105. 

(/)   See  9  East,  69. 

[g)    Vide  infra,  and  18  Ves.  jun.  92. 

(*163) 


192 


OF  PROTECTION  FROM 


his  wire(/<).  Lord  Keeper  Bridgman  is  also  reported,  by 
Levinz,  to  have  agreed  with  Hale,  that  the  marriage 
and  portion  of  the  first  wife  would  extend  to  the  issue 
of  the  second  ;  but  this  opinion  was  extra-judicial,  inas- 
much as  he  relieved  against  the  defective  execution  of  the 
power(i)  ;  and  it  is  observable,  that  no  such  opinion  is 
stated  in  the  report  in  Chancery(A;).  The  case  of  White 
and  Stringer(/)  does  appear  to  be  an  authority  for  such 
limitations,  after  a  vested  estate-tail ;  the  remoteness  of  the 
remainder  was  much  relied  upon  in  its  favor.  But  even 
in  that  case  there  were  special  circumstances  ;  the  remain- 
der was  excepted  in  the  purchase  deed,  and  the  purchaser 
took  a  collateral  security  against  it.  It  may  be  thought, 
therefore,  that  he  only  purchased  the  reversion  in  fee 
which  was  in  the  settler  from  whom  he  bought.  The  case 
of  Osgood  V.  Strode(m),  like  Jenkins  and  Keymis,  de- 
pends on  the  circumstance,  that  the  father  and  son  had 
each  an  interest  in  the  estate,  and  One  could  not  make  the 
settlement  without  the  other.  Lord  Macclesfield,  how- 
ever, considered  the  marriage  portion  not  to  go  beyond 
the  limitations  to  the  husband,  and  wife,  and  issue  ;  and 
his  subsequent  observations  are  addressed  to  creditors, 
and  not  to  picrchasers.  The  case  of  Roe  and  Mitton(n) 
depends  on  the  same  principle,  and  is  so  far  an  authority 
against  the  validity  of  the  remainders,  that  the  marriage 
consideration  alone,  was  not  considered  sufficient  to  sup- 
port limitations  to  the  brothers.  Lord  Eldon  has  ob- 
served(o),  that  in  the  case  of  a  father,  tenant  for  life,  with 
(*)remainder  to  his  son  in  tail,  they  may  agree,  upon  the 

(h)   See  1  Cha.  Ca.  103. 

(i)   See  1  Lev.  237. 

(fc)    See  1  Cha.  Ca.  106. 

(/)   2  Lev.  105.      See  2  P.  Wms.  265. 

(»»)   2  P.  Wms.  245. 

(»)  2  Wils.   356. 

(o)  18  Ves.  jun.  92. 

(*164) 


VOLUNTARY  SETTLEMENTS. 


193 


marriage,  of  the  son,  to  settle,  not  only  upon  his  issue,  but 
upon  the  brothers  and  uncles  of  that  son  :  and  the  ques- 
tion would  be,  whetlier  they,  though  not  within  the  consi- 
deration of  the  marriage,  are  not  within  the  contract  be- 
tween the  father  and  son,  both  having  a  right  to  insist 
upon  a  provident  provision  for  uncles,  brothers,  sisters, 
and  other  relations,  and  to  say  to  each  other,  "  I  will  not 
agree  unless  you  will  so  settle."  The  Court,  his  Lord- 
ship added,  has  held  such  a  claim  not  to  be  that  of  a 
mere  volunteer,  but  as  falling  within  the  range  of  the 
consideration.  The  case  of  Goring  v.  Nash(^;9j,  does  not 
apply  to  the  case  under  consideration.  It  was  a  question 
upon  the  specific  execution  of  articles,  and  the  rule  of 
equity  cannot  weaken  the  effect  of  the  statute. 

This  hasty  view  of  the  authorities  seem  to  show,  that 
the  question  was  still  open.  A  case  lately  occurred  which 
seemed  to  call  for  a  clear  decision  upon  the  point(9).  A 
man,  previously  to  his  marriage,  settled  an  estate  to  the 
use  of  himself,  for  life  ;  remainder  to  trustees,  in  the 
usual  way,  to  preserve  ;  remainder  to  the  first  and  other 
sons  of  the  marriage,  successively  in  tail  male  ;  remainder 
to  the  first  and  other  sons  of  the  husband  by  any  after- 
taken  wife,  successively  in  tail  male  ;  remainder  to  the 
daughters  of  the  intended  marriage,  as  tenants  in  common 
in  tail,  with  cross  remainders  between  them  in  tail,  with 
reversion  to  himself  in  fee.  The  marriage  took  elfect, 
and  the  wife  died  in  her  husband's  life-time,  without 
issue.  The  husband,  not  having  been  married  again, 
mortgaged  the  estate.  The  legal  estate  was  outstanding, 
and  the  question  was,  whether  it  was  to  be  conveyed  to 
the  mortgagee  or  not.  A  case  was  directed  to  the  King's 
Bench,  in  which  the  settlement  was  stated  as  a  legal  set- 
tlement :   (*)and  it  was  stated,  that  the  settler  had  sold 

(p)  3  Aik.  186. 

(q)  Clayton  r.  Lord  Wiltun,  betoro  Lord  Eldon,  Ch. 

25  (*i6r>) 


194 


OF  PROTECTION  FROM 


for  a  full  and  valuable  considoratioii.  Tlie  question  for 
the  opinion  of  the  Court  was,  whether  the  conveyance  to 
the  purchaser  was  a  good  and  valid  conveyance  for  a  val- 
uable consideration,  against  the  issue  of  the  plaintiff's 
second  marriage.  Lord  Ellenborough,  and  the  other 
Judges  of  B.  R.(r),  certified  their  opinion,  that  the  con- 
veyance, by  the  plaintiff,  to  the  purchaser,  was  not  a  good 
and  valid  conveyance  against  the  issue  of  the  plaintiff's 
second  marriage. 

In  the  above  case,  therefore,  the  limitations  to  the  col- 
laterals were  supported  :  but  it  is  observable,  that  in  order 
to  support  the  limitations  to  the  daughters  of  the  first 
marriage,  it  was  necessary  to  support  the  remainders  to 
the  sons  of  the  second  marriage.  That  was  of  itself  a 
sufficient  ground  to  support  the  remainders.  It  has,  on 
the  same  principle,  been  considered,  that  an  estate  to  a 
stranger  may  be  supported,  under  a  covenant  to  stand 
seised,  if  required  to  give  effect  to  subsequent  limitations 
within  the  consideration. 

The  same  circumstances  precisely,  however,  appear  to 
have  occurred  in  Roe  v.  Mitton,  but  this  ground  does 
not  appear  to  have  been  urged  in  its  support.  It  was 
decided  upon  the  ground  before  mentioned  :  and  Lord 
C.  J.  Wilmot  said,  that  the  whole  of  the  question  turned 
upon  that.  It  is  scarcely  possible  to  suppose  that  the 
question  was  not  discussed  at  the  bar. 

In  a  recent  case  in  Ireland(5),  the  precise  point  seems 
to  arise,  although  the  facts  are  very  numerous.  In  a  set- 
tlement, previous  to  marriage,  after  the  limitations  to  the 
issue  of  the  marriage,  which  failed,  remainders  to  the 
collateral  relations  of  the  settler  were  added,  under  which 
the  grandson  of  an  uncle  of   the  settler  claimed.     The 

(r)   On  the  31st  May  1S13. 

(s)   Fairfield  v.  Birch.     The  special  verdict  is  shortly  staled   in   Ap- 
pendix, No.  26, 


VOLUNTARY  .SETTLEMENTS.  ^rtt 

(*)settler  sold  the  estate  to  a  purchaser,  with  full  notice 
of  the  settlement.  Upon  a  trial  in  the  Court  of  Common 
Pleas,  in  Ireland,  Lord  Norbury,  C.  J.  and  Mr.  Justice 
Mayne,  were  in  favor  of  the  defendant  ;  and  Mr.  Justice 
Fox,  and  Mr.  Justice  Fletcher,  in  favor  of  the  plaintiff. 
The  latter,  pro  forma,  aUowed  his  opinion  to  be  entered 
up  for  the  defendant,  and  a  writ  of  error  was  accordingly 
brought;  but  the  author  has  not  learned  how  the  point 
was  finally  decided. 

Since  the  above  observations  were  written,   the  case 
of  Johnson  v.  Legard  has  oci^urred,  in  which  the  abstract 
point  was  stated   for  the  opinion  of  the  Court  of  King's 
Bench.      In  that   case,  the  wife    had  only  a   rent-charge, 
and  therefore  it  might   be  supposed,  that  she  stipulated 
for  the  settlement  of  the  estate  in  remainder,  on  her  hus- 
band's brothers,  in  order  that  the  family  dignity  might  be 
maintained,  and    her    annuity  be    regularly   paid.      The 
Court  of  King's  Bench   certified  their  opinion,  that  none 
of  the  limitations  to  the  collaterals  was  a  good  and  valid 
limitation,    as    against    the    purchaser ;     and    the    Vice- 
Chancellor,  without  hearing  any  argument  on  this  point, 
confirmed  the  certificate(^).     That  decree,  however,  has 
upon  the  circumstances  been  reversed  by  the  Lord  Chan- 
cellor on  appeal,  but   still  the    point   in   question  was  not 
settled(?i). 

If  an  agreement  be  entered  into  before  the  marriage  for 
a  settlement  of  the  estate(i;)(376),  or  the  husband  receive 

(0  Ch.  20,  July  1818,  MS.  ;  3  Wadd.  2S3  ;  6  Madd.  60  ;  vide  in- 
fra. 

(«)    1  Turn.  &  Rims.  281. 

(r)   Griffin  v.  Stanhope,  Cr-   ^ar-  ^^^  ?   ^''   ^"^P^  ^o^'^'s  case.  1 

Ventr.  193  ;   but  qu.  wh^-^  the  agrecmot   before   the   n.arnage   .s   by 

parol       See   Ra»da'.' r-  Morgan,  12  Ves.  jun.  74  ;   Battersbee  v.  Far- 

.  1  o  o,v,i  706;  1  Wils.  88;  and  see  Treat,  of  Powers,  4th 
nngton,  1  fcovap^i-  '""' 

edit.  p.  49^' 

376)  See  Reads  v.  Livingston,  3  Johns.  Ch.  Rep.  481,  488.     But 

(*166) 


-jOp  OF  PROTECTION  FROM 

an  additional  portion  with  his  \\ife{iv)(311),  the  sutthniient, 
(*)although  made  after  meirriage,  will  be  deemed  valuable. 
So,  even  an  agreement  to  pay  the  husband  a  sum  of 
money  as  a  portion,  will  su|)port  a  settlement  made  after 
marriage,  if  the  money  is  paid  according  to  the  agree- 
ment (a;)  (37  8).  And  where  a  woman  has  been  married 
indiscreetly,  and  a  trustee  of  a  sum  of  money  which  the 
husband  is  entitled  to  in  right  of  his  wife,  will  not  pay 
it  unless  he  make  a  settlement  on  his  wife,  and  a  settle- 
ment is  accordingly  made,  the  settlement  will  equally  be 
supported  as  if  a  bill  had  been  brought  against  the  hus- 
band to  make  a  provision  for  his  wife(^)(379). 

So  the  concurrence  of  the  wife  in  destroying  an  exist- 
ing settlement  on  her  for  the  benefit  of  the  husband,  is 
a  sufficient  consideration  for  a  new  settlement,  although 
much  more  valuable  than  the  former(2:).     And  the  better 

(iv)  Colvile  f.  Parker,  do-  Jac.  158;  Jones  v.  Marsh,  For.  64; 
Stileman  v.  Ashdown,  2  Atk.  477  ;  Ramsden  v.  Hylton,  2  Ves.  304. 

(x)   Brown  v.  Jones,  1  Atk.  188. 

(y)  Ibid. 

(z)  Scott  r.  Bell,  2.  Lev.  70;  Bail  r.  Bumford,  Free.  Cha.  113;  1 
E<1.  Ca.  Abr.  354,  pi.  5.     See  Clerk  v.  Nettleship,  2  Lev.  148. 

a  settlertx^nt  after  marriage,  in  pursuance  of  a  parol  agreement  entered 
into  before  marriage,  is  not  valid.  S.  C.  p.  488.  Nor,  as  it  seems, 
will  svjch  settlement  be  valid  against  creditv>rs,  though  the  deed  recite 
the  ante-huptial  parol  agreement.  S.  C.  p.  491.;  and  see  Scott  v. 
Gibbon,  6  Munf.  86. 

(377)  See  Games  v.  Smith,  2  Des.  299. 

(378)  And  H  parol  promise  by  a  father  to  his  daughter's  husband  be- 
fore marriage,  to  give  him  a  tract  of  knd,  if  he  would  marry  his  daugh- 
ter, is  a  sufficient  consideration  to  sustain  a  written  agreement  made 
after  the  marriage,  .rh-genhrlghi  v.  Campbell,  3  Hen.  &  Munf.  144. 
See  Rundle  v.  Murgatroyd^s  Ass.  4  L>a,,.  305,  and  the  note.  See  also, 
St&rry  v.  Arden,  1  Johns.  Ch.  Rep.  2b  1. 

(379)  See  Howard  v.  Moffat,  2  Johns.  Ch.  Rep.  206.     The  courts 
of  Pennsijhania  have  no  authority   to  direct  a  proviaiun  *  f  •   th        T 
when  the  husband  applies  for  her   personal  property.      Yoke,,     »    .    / 
1  Binn.  358,  365.  '      *'  "*  ' 

in67) 


.*ti 


VOLUNTARY  SETTLEMENTS'.  jgy 

opinion,  as  well  upon  principle  as  in  point  of  authority, 
seems  to  be,  that  the  wife  joining  in  barring  her  dower, 
for  the  benefit  of  her  husband,  will  be  a  sufficient  consi- 
deration for  a  settlement  on  her(«).  It  has  been  decided, 
that  the  wife  parting  with  her  jointure  is  a  sufficient  con- 
sideration. Now,  if  that  which  comes  in  lieu  of  dower  is 
a  valuable  consideration,  surely  the  dower  itself  must  be 
equally  valuable.  Besides,  where  a  woman  is  entitled  to 
dower,  the  estate  cannot  be  sold  to  advantage  without 
her  concurrence  ;  she  is  a  necessary  party  to  any  arrange- 
ment respecting  the  estate,  and  that  alone  seems  a  suffi- 
cient ground  to  support  a  settlement  on  her. 

But  if  an  unreasonable  settlement  be  made  upon  a  wife 
in  consideration  of  her  releasing  her  dower,  it  seems  that 
equity  in  favor  of  subsequent  purchasers  will  restrain  her 
(*)to  her  dower(6).  These  are  points,  however,  which 
will  not  frequently  arise,  now  that  dower  is  placed  under 
the  husband's  control(c). 

If,  upon  a  separation  the  husband  settle  an  estate  upon 
his  wife,  and  a  friend  of  her's  covenant  to  indemnify  the 
husband  against  any  debts  which  she  may  contract,  this 
will  be  a  sufficient  consideration  to  uphold  a  settlement 
as  valuable,  and  not  within  the  statute(c?).  Indeed,  the 
Courts  will  anxiously  endeavor  to  support  a  fair  settle- 
ment, and  nearly  any  consideration  will  be  sufficient  for 
that  purpose.  Therefore,  if  a  person,  whose  concurrence 
the  parties  think  essential,  join  in   a  settlement,  his  con- 

(o)  Lavender  I'.  Blackstone,  2  Lev.  146.  See  and  consider  Evelyn 
V.  Templar,  2  Bro.  C.  C.  148;  18  Yes.  juu.  91  ;  Pulvertoft  v.  Pulver- 
toft,  18  Ves.  84. 

(6)    Dolin  V.  Coltman,  1  Vern.  294. 

(c)  3  &  4  Will.  4,  c.  105. 

(d)  Stephens  v.  Olive,  2  Bro.  C.  C.  90  ;  King  v.  Brewer,  ibid.  93, 
n.     See  however  Lord  Eldon's  argument  in  Lord  St.  John  v.  Lady  St. 

John,  11  Ves.  jun.  526;  Worrall  r.  Jacob,  3  Mer.  266. 

(*168) 


193 


OF  PitOTECTION  FROM 


currence  will  be  deemed  a  valuable  consideration,  althoujrh 
he  did  not  substantially  jrart  with  any  thing(e). 

It  may  be  observed,  that  the  statute  of  Elizabeth  does 
not  affect  settlements  of  personal  estate(y).  Equity  will 
not  assist  a  mere  stranger  in  making  good  a  voluntary 
settlement  upon  him,  unless  the  property  was  so  trans- 
ferred as  to  create  the  relation  of  trustee  and  cestui  que 
trust.  In  a  late  case,  however,  a  voluntary  assio;nment 
of  an  equitable  reversionary  interest  to  trustees,  for  a 
stranger,  was  established,  although  as  the  settlement  was 
merely  equitable,  the  person  claiming  under  it  of  course 
had  not  any  right  to  the  property  at  law(o-).  This  deci- 
sion (*)is  of  great  importance.  The  principle  upon  which 
it  was  decided  should  be  applied  with  great  caution  to 
other  cases. 


III.  We  have  seen  what  will  be  deemed  a  fraudulent 
or  voluntary  conveyance  ,*  but  although  a  deed  be  merely 
voluntary  or  fraudulent  in  its  creation,  and  voidable  by  a 
purchaser  (i.  e.  would  become  void  by  a  person  purchasing 
the  estate),  yet  it  may  become  good  by  matter  ex  post 
facto  :  as  if  a  man  make  a  feoffment  by  covin,  or  without 
any  valuable  consideration,  and  the  feoffee  make  a  feoff- 
ment for  valuable  consideration,  and  then  the  first  feoffor 
enter  and  make  a  feoff'ment  for  valuable  consideration, 
the  feoffee  of  the  first  feoffee  shall  hold  the  lands,  and  not 
the  feoflfee  of  the  first  feoffor  :  for  although   the  estate  of 

(c)  Roe  V.  Mitton,  2  Wils.  356.  See  Myddleton  v.  Lord  Kenyon, 
2  Ves.  jun.  391  ;  Hill  v.  Bishop  of  Exeter,  2  Taunt.  69  ;  and  18  Ves. 
jnn.  92  ;  Gully  v.  Bishop  of  Exeter,  5  Bingh.  171  ;  2  Moo.  &  P.  105, 
266,  276. 

if)  Per  Sir  W.  Grant,  in  the  case  of  Sloane  v.  Cadogan,  infra; 
Jones  V.  Croucher,  1  Sim.  &  Stu.  315. 

(g)  Sloane  v.  Cadogan,  Rolls,  Dec.  1808,  MS.  Appendix,  No.  26. 
This  case  involved  an  important  question  upon  the  execution  of  a  pow- 
er.    See   ex  parte  Pye,  18  Ves.   140  ;  Fenner  v.   Taylor,  2   Russ.   & 

Myl.  195. 
(*169) 


VOLUNTARY  SETTLEMENTS. 


199 


the  first  feoffee  was  in  its  creation  covinous,  or  voluntary, 
and  therefore  voidable,  yet  when  he  enfeoffed  a  person 
for  valuable  consideration,  such  person  shall  be  preferred 
before  the  last(/i)(381). 

Lord  Eldon  hasj  applied  this  rule  to  persons  having 
only  equitable  rights.  For  where  a  person  who  had  an 
absolute  power  of  appointment  over  a  sum  of  money  to 
be  raised  under  a  trust-term,  divocted  part  of  it  to  be 
raised  in  favor  of  a  volunteer,  who  afterwards  mortgaged 
such  part,  although  the  money  appointed  was  deemed 
assets  as  between  the  creditors  of  the  appointor  and  the 
appointee,  yet  the  claim  of  the  purchaser  was  preferred  to 
that  of  the  creditors :  he  having  a  preferable  equity(z). 

If  a  voluntary  grantee  gain  credit  by  the  conveyance  to 
him,  and  a  person  is  induced  to  inarry  him  on  account  of 
(*)such  provision,  the  deed,  though  void  in  its  creation  as 
to  purchasers,  will,  on  the  marriage  being  solemnized,  no 
longer  remain  voluntary,  as  it  was  in  its  creation,  but  will  be 
considered  as  made  upon  valuable   consideration(y)(382). 

(h)  Prodgers  v.  Langham,  1  Sid.  133;  Andrew  Newport's  case, 
Skin.  423  ;  Wilson  v.  Wormal,  Godb.  161,  pi.  226  ;  Doe  v.  Martyr,  1 
New.  Rep.  332  ;  and  see  Parr  v.  Eliason,  1  East,  92.  See  also  Lady 
Burg's  case,  Mo.  602  ;  and  3  Atk.  377. 

(t)   George  r.  Milbank,  9  Yes.  jnn.  190.     See  1  Mer.  638. 

(jj  Prodgers  v.  Langham,  1  Sid.  133  ;  Kirk  v.  Clark,  Prec.  Cha. 
276  ;  S.  C.  by  the  name  of  Heisier  v.  Clark,  2  Eq.  Ca.  Abr.  46,  pi. 
13;  Doe  r.  Routledge,  Cowp.  705;  East  India  Company  r.  Clavell, 
Gilb.  Eq  Rep.  37;  Prec.  Cha.  377  ;  and  see  9Ves.  jun.  193  ;  O'Gor- 
man  v.  Comyn,  2  Scho.  &  Lef.  147 ;   Crofton  r.  Ornisby,  ibid.  683. 

(381)  See  Jackson  v.  Henry,  10  Johns.  Rep.  186,  197.  Fletcher  v. 
Feck,  6  Crunch,  133.  Bnmpus  v.  F'alner,  1  Johns.  Ch.  Rep.  213,  219. 
Aslor  V  Wells,  4  Wheat.  466,  487,  488.  Roberts  v.  Anderson,  3  Johns. 
Ch.  Rep.  377.  et  se<].  S.  C.  on  appeal,  18  Johns.  Rep.  515.  Frost  v. 
Beckman,  1  Johns.  Ch.  Rep.  288,  300. 

(382)  See  Sterry  v.  Jirden,  1  Johns.  Ch.  Rep.  261.  And  it  makes 
no  difference  whether  any  particular  marriage  was  in  contemplation,  at 
the  time  of  the  voluntary  settlement  or  not.  Id.  See  also,  .ii-genbriglii 
V.  Campbell,  3  Hen.  &  Munf.  144. 

(*170) 


200  ^^  PROTECTION  FROM 

And  it  is  to  be  inferred  from  a  late  decision(A;),  that 
though  it  does  not  appear,  that  the  friends  of  the  wife 
did  speculate  upon  the  provision,  and  take  it  into  consid- 
eration, jet  it  must  be  presumed  that  they  did  act  upon 
it ;  and  it  cannot  afterwards  be  disturbed.  In  the  case 
alluded  to,  the  question  was,  whether  the  husband,  who 
was  tenant  for  life,  with  remainder  to  his  sons  in  strict 
settlement,  had  any  equity  to  be  relieved  against  the  set- 
tlement, as  made  under  an  undue  influence  of  parental 
authority  ;  and  it  was  determined,  that  the  husband  could 
not  disturb  it  by  reason  of  his  subsequent  marriage,  al- 
though it  did  not  appear  that  the  friends  of  his  wife  took 
the  settlement  into  consideration.  The  same  principle 
applies  to  the  case  under  consideration. 

Notwithstanding  the  decisions  as  to  voluntary  settle- 
ments, it  is  seldom  that  a  purchaser  can  be  advised  to  ac- 
cept a  title  where  there  is  a  prior  settlement ;  for  although 
apparently  voluntary,  yet  if  a  valuable  consideration  were 
paid  or  given,  parol  evidence  would  be  admissible  of  the 
transaction,  in  order  to  support  the  deed,  and  rebut  the 
supposed  fraud.  This  seems  to  be  admitted  by  all  the 
cases(/)(383).  And  in  Ferrars  v.  Cherry(m),  it  was 
even  holden,  that  although  a  settlement  was  apparently 
voluntary^  and  made  after  marriage,  yet  if  the  purchaser 
(*)had  notice  of  the  settlement,  and  it  prove  to  have  been 
made  in  pursuance  of  articles  before  marriage,  he  would 
be  bound  by  it,  and  could  not  protect  himself  by  a  prior 
legal  estate,  as  he  ought  to  have  inquired  of  the  wife's 
relations,  who  were  parties  to  the  deed,  whether  it  was 
voluntary,  or  made  pursuant  to  an  agreement  before  mar- 
riage.    Lord  Hardwicke,  indeed,  has  said,  that  he  inclined 

(fc)  Brown  v.  Carter,  5  Ves.  jun.  862. 

(I)  See  particularly  Chapman  v.  Emery,  Cowp.  278. 

(m)   2  Vern.  384. 


(383)  See  Sterry  v.  Arden,  1  Johns.  Ch.  Rep.  271. 
(*171) 


VOLUNTARY  SETTLEMENTS. 


201 


to  ihink  it  *vas  in  this  case  left  uncertain  on  tlie  face  of 
the  settlement,  whether  it  was  made  before  marriage  or 
not  ;  and  he  denied  the  authority  of  the  case(/i). 

This  opinion  of  Lord  Hardwicke's  cannot  be  safely 
relied  on.  Indeed,  if  notice  of  a  settlement  apparently 
voluntary,  but  which  turns  out  to  be  made  on  valuable 
consideration;  slwuld  not  be  deemed  notice  to  a  purchaser 
of  the  consideration,  yet,  unless  he  has  a  prior  legal 
estate,  he  cannot  protect  himself  against  the  settlement. 
Both  parties  being  purchasers,  equity  must  stand  neuter, 
and  the  person  claiming  under  the  conveyance  must  re- 
cover at  law. 

There  are  but  few  cases  on  the  effect  of  an  agreement 
by  the  settler  to  sell  an  estate  after  a  voluntary  settlement 
of  it.  In  Leach  v.  Dean(o),  the  plaintiff's  suit  was  to  be 
relieved  upon  articles  of  agreement  for  the  purchase  of 
lands  from  the  defendant,  who  before  the  articles  had  by 
deed  conveyed  the  estate  to  his  son,  and  the  Court  made 
the  decree  as  prayed  ;  "  but  as  to  the  voluntary  convey- 
ance, the  same  is  not  hereby  impeached,  as  between  the 
father  and  son  for  any  advancement,  or  any  other  thing 
thereby  settled  on  the  son,  other  than  making  good  the 
articles  of  agreement  ;  but  the  trustees  to  be  paid  their 
debts  and  engagements  out  of  the  purchase-money."  It 
does  not  appear  that  the  purchaser  had  notice  of  the  set- 
tlement (*)at  the  time  he  contracted.  It  was  altogether 
a  voluntary  settlement.  So. in  Douglasse  v.  Ward(|?),  the 
settlement  was  after  the  settler's  first  marriage  on  himself 
for  life,  remainder  to  his  first  and  other  sons  in  tail,  and 
was  therefore  voluntary  throughout.  Previously  to  his 
second  marriage,  in  consideration  of  a  portion,  he  agreed 
to  settle  a  jointure  on  his  second  wife,  out  of  the  settled 

(n)   Senhouse  v.  Earle,  Ambi.  285.     See  2  Yes.  60,  n. 

(o)    1  Cha.  Rep.  78. 

{p)   1   Cha.  Ca.  99. 

VOL.   II.  26  (*172) 


^iqo  of  protection  from 

estate,  and  she  was  relieved  against  her  ow-n  issue,  who 
claimed  under  the  settlement.  It  does  not  appear  that 
she  had  notice  of  the  settlement,  and  at  the  time  of  her 
articles  there  was  no  person  m  esse  entitled  under  the 
settlement,  and  the  settler  himself  could  have  destroyed 
the  contingent  remainders.  Parry  v.  Carvvarden(</),  was 
also  a  suit  by  a  purchaser,  who  had  no  notice  of  the  settle- 
ment, and  there  the  settler  herself  filed  a  hill  to  set  aside 
the  settlement,  but  died  before  the  cause  was  at  issue. 

The  cases,  therefore,  do  not  carry  the  doctrine  very  far. 
They  were  all  cases  in  which  i\\e  purchaser  «as  plaintiff, 
and  in  none  of  them  had  he  notice  of  the  settlement.  It 
is  now  settled,  after  a  great  struggle,  that  a  purchaser 
under  a  conveyance  may  avoid  a  voluntary  settlement, 
although  he  had  notice  of  it,  but  that  decision  ought  not 
to  induce  equity  to  consider  Leach  v.  Dean,  and  that  line 
of  cases,  as  authorities,  for  decreeing  a  specific  perform- 
ance where  the  purchaser  has  notice.  If  a  construction 
of  a  statute  be  made,  which  is  too  late  to  overrule,  but 
which,  it  is  admitted,  ought  never  to  have  been  esta- 
blished, the  principle  of  the  rule  should  not  be  pushed  to 
its  greatest  extent,  but  the  rule  should  rather  be  confined 
strictly  to  the  very  circumstances  under  which  it  was 
established. 

In  Bennet  v.  Musgrove(r),  Lord  Hardwicke  said,  the 
distinction  in  equity  was,  that  where  a  subsequent  pur- 
chaser (*)for  a  valuable  consideration  would  recover  the 
estate,  and  set  aside  or  get  the  better  of  a  precedent  vo- 
luntary conveyance,  if  that  conveyance  was  fairly  made, 
without  actual  fraud,  the  Court  will  say,  Take  your  re- 
medy at  law  ;  but  wherever  the  conveyance  is  attended 
with  actual  fraud,  though  they  might  go  to  law  by  eject- 
ment, and  recover  the  possession,  they  may  come  into  this 

(9)  Dick.  544. 
(r)  2  Ves.  51. 
(*173) 


VOLUNTARY  SETTLEMENTS. 


203 


Court  to  set  aside  that  conveyance  ;  which  is  a  distinction 
between  actual  and  presumed  fraud,  from  its  being  merely 
a  conveyance  ;  and  he  adhered  to  the  same  rule  in  Oxley 
V.  Lee(5). 

From  this  it  might  be  inferred,  that  equity  would  not 
compel  a  specific  performance  in  favor  of  a  purchaser 
!  who  bought  ivith  notice  of  a  prior  voluntary  conveyance 
i  made  without  fraud.  But  in  a  recent  case,  where,  after 
a  voluntary  settlement,  the  settler  entered  into  a  contract 
to  sell  the  settled  estate  to  a  person  with  full  notice  of 
the  settlement.  Sir  Wm.  Grant,  Master  of  the  Rolls,  on 
mature  consideration,  decreed  a  specific  performance 
against  the  parties  claiming  under  the  voluntary  settle- 
ment(/)(384)  ;  and  Lord  Eldon  appears  to  have  approved 
of  the  decision(i<),  but  he  was  not  called  upon  to  consid- 
er the  point.  It  is  certainly  a  very  strong  decision.  The 
construction  that  a  bona  fide  voluntary  settlement  was 
void  under,  the  statute  against  a  subsequent  purchaser, 
who  bought  with  notice,  was  not  established  without  great 
opposition,  and  has  always  been  considered  a  harsh  inter- 
pretation. But  the  statute  only  operates  where  the  pur- 
chaser acquires  the  estate  under  a  conveyance.  Equity 
generally  follows  the  law  ;  and  therefore  a  sale  of  an 
equitable  estate  must,  like  a  sale  of  a  legal  estate,  operate 
to  defeat  a  prior  voluntary  settlement ;  but  that  rule  does 
(*)not  seem  to  apply  to  this  case,  where  the  contracting 
party  has  all  his  legal  right,  and  the  question  is  not  in 
what  channel  an  equitable  interest  actually  in  esse  shall 
go,  but  whether  the  purchaser  has  any  equitable  interest, 
or,  in  other  words,  whether  the  Court  will  lend  him  its 
extraordinary  aid,   in  order  to  carry  the  contract  into  a 

(s)   1  Atk.  625. 

(/)  Buckle  V,  Mitchell,  18  Ves.  jun.  101. 

(k)  Metcalfe  v.  Pulvertoft,  1  Ves.  &  Beam.  180. 


(384)  See  Sternj  v.  Arden,  I  .fohns.  Ch.  Re|>.  271. 

(M74) 


204 


OF  PROTECTION  FROM 


specific  execution,  instead  of  leaving  him  to  his  remedy 
at  law.  It  were  difficult  to  maintain,  that  the  statute 
requires,  by  implication,  equity  to  interpose,  or  that  the 
interposition  of  the  Court  is  called  for  by  analogy  to  the 
legal  rule  ;  and  unless  that  could  be  established,  the  plain- 
tiff in  such  a  suit  might,  with  propriety,  be  told  that  he 
did  not  come  there  with  clean  hands.  He  knew  that 
the  seller  had  already  settled  the  estate  on  another,  and 
that  he  could  not  break  through  the  settlement  unless 
by  the  circuitous  route  of  a  sale.  This  was  a  purpose 
to  which  the  plaintiff  ought  not  to  have  lent  himself,  and 
at  least  he  could  not  complain  that  he  was  left  to  his 
legal  right,  and  that  equity,  who  would  not  suffer  the 
settler  to  break  through  the  settlement  for  his  own  be- 
nefit, would  not  assist  even  a  purchaser  in  defeating  it 
where  he  bought  with  notice.  The  act  relieves  a  man 
who  has  actually  bought  and  paid  for  the  estate,  and 
obtained  a  conveyance  of  it;  but  it  does  not -provide  for 
the  case,  where  not  having  completed  his  contract,  he 
would  not  be  damnified  by  the  settlement ;  but  would 
have  his  legal  remedy  against  the  vendor  for  breach  of 
contract.  Such  a  case  did  not  call  for  any  legislative  re- 
medy, and  equity,  it  may  be  thought,  ought  to  stand  neuter. 

In  Buckle  v.  Mitchell,  however,  the  settlement  was 
subject  to  all  the  specialty  and  simple  contract  debts  then 
due,  01' to  be  due,  from  the  settler.  The  bill  was  filed  after 
the  seller's  death,  but  that  circumstance  does  not  appear 
to  have  received  much  consideration. 

(*)In  the  case  of  Burke  v.  Dawson(a;J,  Sir  Wm.  Grant, 
I  am  told,  seemed  to  be  of  opinion,  that  although  a  pu?- 
chaser,  subsequently  to  a  voluntary  conveyance,  might 
compel  a  specific  performance,  yet  the  vendor  could  not 
enforce  the  execution  of  the  contract  against  an  unwilling 
contractor.     Indeed  this  seems  to  flow  from  the  rule,  that 

[x)   Rolls,  March  1805,  MS. 

(*175) 


VOLUNTARY  SETTLEMENTS.  205 

the  voluntary  conveyance  is  binding  on  the  settler  him- 
self; and  the  statute  of  Elizabeth  was  passed  to  protect 
purchasers,  and  not  to  enable  persons  to  break  through 
bona  fide  settlements,  although  made  voluntarily,  and 
without  consideration. 

In  the  later  case  of  Smith  and  Garland(y)  the  very 
point  arose.  The  bill  was  filed  by  the  seller,  who  made 
the  voluntary  settlement.  The  defendant,  the  purchaser, 
bought  without  notice.  He  raised  the  objection  to  the 
title  on  account  of  the  settlement  by  his  answer,  but  sub- 
mitted to  perform  the  contract  if  a  good  title  could  be 
made.  Sir  Wm.  Grant,  Master  of  the  Rolls,  in  a  judgment 
which  will  long  be  remembered  by  those  who  heard  it, 
expressly  distinguished  the  case  from  his  former  decision 
in  Buckle  and  Mitchell,  and  decided  that  the  settler 
cannot  maintain  a  bill  for  a  specific  performance.  For 
the  settlement  was  binding  on  him,  and  he  had  no  right 
to  disturb  it. 

In  the  more  recent  case  of  Johnson  v.  Legard,  the  settle- 
ment was  in  consideration  of  a  marriage,  and  was  not 
voluntary  throughout.  By  an  agreement  in  writing,  in 
October  1807,  Sir  John  Legard,  the  settler,  agreed  to  sell 
and  convey  the  estate  to  Mr.  Watt,  before  the  6th  of  April 
1808.  And  Mr.  Watt  agreed  to  secure,  by  mortgage  of 
the  estate  and  his  bond,  the  purchase-money  with  interest ; 
which  principal  sum  was  to  remain  upon  the  security  at 
interest  during  the  life  of  Sir  John  Legard,  and  for  twelve 
(*)calendar  months  afterwards.  And  it  was  agreed,  that 
if  W  att,  his  heirs  or  assigns,  should  be  evicted  from  or  de- 
prived of  the  possession  of  the  estate  by  any  issue  male  of 
Sir  John  Legard,  or  by  any  other  person  claiming  or  deriv- 
ing title  under  him,  then  the  sums  laid  out  in  improve- 
ments or  necessary  alterations  were  to  be  repaid  with  in- 
terest, and  also  the  purchase-money  ;  and  the  security  for 

(y)  Smith  l-   Garland,  2  Mer.  123. 

(*176) 


206 


OF  PROTECTION  FROM 


any  part  unpaid  was  to  be  void.  Sir  John  Legard  died. 
His  creditors  filed  a  bill  against  the  remainder-men  under 
the  settlement,  and  against  Watt,  praying  a  specific  per- 
formance. Watt  by  his  answer  objected  to  the  title  on 
account  of  the  settlement,  but  submitted  to  perform  the 
agreement  on  having  a  good  title.  By  the  decree  it  was 
ordered,  that  a  case  should  be  made  for  the  opinion  of  the 
Judges  of  the  King's  Bench,  and  that  such  case  should 
state,  that  a  conveyance  was  actually  made  of  the  estate  in 
question  for  a  valuable  consideration,  by  Sir  John  Legard, 
in  his  lifetime  ;  and  that  the  question  should  be,  whether 
the  limitations  to  the  col^aterals  were  good  against  the  pur- 
chaser ;  and  further  directions  were  reserved.  The  result 
of  the  case  before  the  King's  Bench  has  already  been  stated. 
The  cause  came  on  before  Sir  John  Leach,  Vice-Chancel- 
lor,  on  further  directions(2:).  The  counsel  for  the  remain- 
der-men relied  upon  the  case  of  Smith  v.  Garland,  which 
had  been  decided  since  the  case  was  directed  to  the  King's 
Bench.  The  Vice-Chancellor  held  that  that  case  was  not 
an  authority  to  be  followed.  It  was  however,  argued,  L 
That  the  statute  of  Elizabeth  only  applied  to  purchasers 
under  actual  conveyances,  and  that  equity  ought  not  to  in- 
terfere. It  never  could  be  contended,  that  at  law  a  pur- 
chaser having  a  mere  right  of  action  under  a  contract,  and 
not  having  paid  his  purchase-money,  could  avoid  a  volunta- 
ry settleme4it,  and  it  would  be  difficult  to  draw  any  line. 
(*)2.  That  the  agreement  was  a  mere  irick  to  set  aside  the 
settlement,  without  placing  the  purchaser  in  any  danger. 
He  never  stood  in  the  situation  of  a  purchaser  who  could 
be  deceived  ;  and  the  second  point  in  White  v.  Stringer 
was  strongly  relied  upon(a).  3.  That  the  creditors  had 
not  any  right   to  file  a  bill.     The  settlement  was  binding 

(z)    17    July  1818,   MS.  ;  3  Madd.    283,  a  short  note  ;  Sutton  v. 
Chetwynd,  3  Mer.  249. 
(a)   2  Lev.  105. 
C*177} 


VOLUNTARY  SETTLEMENTS.  207 

on  the  settler,  and  unless  he  placed  a  purchaser  in  a 
situation  to  avoid  the  settlement,  the  estate  of  the  remain- 
der-men could  not  be  impeached  after  his  death  :  there 
was  no  equity  against  them.  4.  That  Smith  and  Gar- 
land was  a  great  authority,  and  a  stronger  case  than  that 
before  the  Court.  There,  as  well  as  in  this  case,  the 
purchaser  submitted  to  perform  the  contract  if  a  good 
title  could  be  made.  The  Vice-Chancellor  expressed  an 
opinion  that  the  creditors  might  file  a  bill  although  the 
settler  could  not,  as  there  was  a  moral  obligation  on  him 
to  provide  for  his  debts,  and  that  the  Court  could  make 
a  decree  between  the  co-defendants.  For  the  remainder- 
men it  was  insisted,  that  the  settler  having  solemnly  on 
his  marriage  settled  the  estate,  in  default  of  his  own  issue, 
on  the  person  who  would  succeed  to  his  title,  had  already 
performed  a  moral  obligation,  and  exhausted  his  power 
over  the  estate.  The  settlement  was  binding  on  him, 
and  his  creditors  could  not,  claiming  under  him,  have  any 
rights  to  which  he  was  not  entitled.  They  did  not  at- 
tempt to  impeach  the  settlement  under  the  13  Eliz.  It 
was  also  submitted,  that  it  would  be  an  act  of  injustice  to 
extend  the  rule  as  to  decreeing  relief  between  co-defend- 
ants to  this  case,  because  it  at  once  took  the  estate  from  the 
remainder-men  without  any  consideration.  It  did  not  fol- 
low that  Watt  the  purchaser  would  file  a  bill  ;  and  if  he 
did,  the  co-defendants  might  shape  their  defence  in  away 
which  they  had  not  by  the  present  bill  been  called  upon 
to  do.  The  Vice-Chancellor  held,  that  the  statute  of  27 
(*)Elizabeth  did  not  confine  the  relief  to  a  purchaser  by 
conveyance,  but  the  act  supposed  there  may  be  a  purchaser 
by  contract.  The  purchaser's  right  follows  as  against  the 
representatives  of  the  vendor.  His  Honor  thought  that 
the  creditors  would  have  a  right  to  insist  upon  a  specific 
performance,  though  the  vendor  had  not ;  but  that  point 
did  not   arise,  for  Mr.  Watt  says  he  is  ready  to  take  the 

(*178) 


208  OF  PROTECTION  FROM 

estate  if  a  good  title  can  be  made.  Besides,  the  former 
decree  concluded  every  question  now  raised.  The  de- 
fendants, the  remainder-men,  have  appealed  to  the  Lord 
Chancellor  against  this  decision.  Sul)sequentlj  to  tlie 
publication  of  the  above  observation,  the  appeal  was  heard 
and  the  decree  below  reversed(6). 

In  Cormick  v.  Trapaud(6-),  the  settler  was  tenant  in 
tail,  with  remainders  to  his  brothers  in  tail,  he  agreed  to 
settle  the  estate  previously  to  his  marriage,  but  did  not 
extend  the  limitations  to  his  brothers  ;  he  after  marriage 
settled  the  estate  with  remainders  to  his  brothers  for  life, 
and  their  issue  in  strict  settlement,  and  afterwards  suffer- 
ed a  recovery.  It  was  held  that  the  limitations  to  the 
brothers  were  voluntary  limitations,  although  the  settler 
was  only  tenant  in  tail. 

If  a  trust  be  created  by  a  voluntary  settlement,  the  par- 
ties entitled  under  it  may  file  a  bill  to  have  the  trust  car- 
ried into  execution  ;  but  an  injunction  will  not  be  granted 
restraining  the  settler  from  defeating  the  settlement  by 
a  sale(c^) ;  nor  will  the  pendency  of  the  suit  prevent  the 
settler  from  'selling  the  property,  or  the  purchaser  from 
filing  a  bill  in  order  to  enforce  his  rights  under  the 
contract(e). 

(*)IV.  It  remains  to  consider  the  construction  which 
the  part  of  the  statute  relating  to  conveyances  with  pow- 
er of  revocation  has  received.  And  first  it  is  to  be  ob- 
served, that  the  statute  does  not  extend  to  particular  pow- 
ers, as  a  power  to  charge  2,000/.  on  an  estate  of  consid- 
erable value,  for  such  a  power  is  not  a  power  within   the 

(6)    It  is  now  lepoiled,  1  Turn.  &  Russ.  281. 

(c)   6  Dow,  60. 

((Z)    Pulvertoft  v.  Pulvertoft,  IS  Ves.  84. 

(e)  Metcalf  v.  Pulvertoft,  1  Ves.  &  Bea.  180.  The  widow  pleaded 
lis  pendens,  and  the  plea  was  over-ruled  by  the  Vice- Chancellor  on  the 
10th  August  1813.     See  2  Ves.  &  Bea.  200. 

(*179) 


» 


VOLUNTARY  SETrLEMEXTS.  OnO 

u'orIs  of  the  staliUo  (bein^   for  a   particular  sum)   to   re- 
voke, deteriiiine,  or  alter  the  estateC/^. 

But  it  is  of  course  quite  clear,  that  a  settlement  by 
which  a  power  of  revocation,  or  a  power  tantamount  to  it, 
is  reserved  to  the  grantor,  is  void  against  a  subsequent 
purchaser(s^)(385),  and  no  artifice  of  ilie  parties  can  pro- 
'  tect  the  settlement.  Thcrelbre,  although  the  power  is 
>  conditional,  that  the  settler  shall  only  revoke  on  payment 
of  a  trifling  sum  to  a  third  person(A),  or  with  the  consent 
of  any  third  person  who  is  merely  appointed  by  the 
grantor(i),  in  these  and  the  like  cases  the  condition  will 
be  deemed  colorable,  and  the  settlement  will  be  void 
against  a  subsequent  purcliaser. 

But  if  a  settlement  is  made  with  a  power  to  the  settler 
to  revoke,  so  as  that  the  money  be  paid  to  trustees  to  be 
invested  in  the  purchase  of  other  estates(/c),  or  to  revoke 
with  the  consent  of  a  stranger  bona  fide  appointed  by  the 
parties,  and  his  consent  is  made  requisite,  not  as  a  mere 
color,  but  for  the  benefit  of  all  parties,  the  settlement 
will  be  valid,  and  cannot  be  impeached  by  a  subsequent 
purchaser(/).  This  was  determined  in  the  case  of  Buller 
V.  Waterhouse(wi),  which,  however,  Mr.  Powell  thought, 
did  not  settle  the  point,  because  all  the  claimants  under 
{*)tlie  conveyance  were  purchasers  for  a  valuable  consider- 
ation(n).     But  it  seems  quite  immaterial  whether  the  set- 

{/)  Jenkins  v.  Keymis,  1  Lev.  150. 

(gj  Cross  tj.  Fauateaditoh,  Cro.  J.ic.  130;  Tarback  v.  Marbury,  2 
Vein.  610.     See  Lane,  22. 

{k)   Griffin  c.  Stanhope,  Cro.  Jac   loi. 

(i)   See  3  Rep.  82,  b.  ;   Luvendcr  v.  Blacltston,  3  Keh.  526. 

{k)   Doe  V.  Martin,  4  Term  Rep.  39. 

(l)  See  Leigh  v.  Winter,  1  Jo.  411  ;  and  see  Lane,  22. 

(»h)  2  Jo.  94;  3  Keb.  751  ;  and  .see  ace.  Hungerford  r.  Earle,  2 
Freem.  120  ;  Lane,  22. 

(n)   Pow.  on  Powers,  330. 


(386)   See  Riggs  v.  Murray,  2  Johns.  Ch.  Hep.  579,  580. 
VOL.    II.  27  (*180) 


210 


OF  PROTECTION  FROM  SETTLEMENTS. 


tlement  itself  is  merely  voluntary,  or  upon  valuable  consi- 
deration(o).  The  statute  says,  that  all  conveyances  which 
the  grantor  has  power  to  revoke  shall  be  void  against 
subsequent  purchasers  ;  and  therefore,  if  parties  giving  a 
valuable  consideration  for  a  settlement  choose  to  permit 
the  grantor  to  reserve  a  power  to  revoke  the  settlement, 
they  must  suffer  for  their  folly.  The  grantor,  by  virtue  of 
the  power,  may  revoke  the  settlement ;  and  if  he  sell  the 
estate  without  revoking  it,  the  statute  makes  it  void.  In 
fact,  if  we  hold,  that  settlements  made  upon  valuable  con- 
sideration are  not  within  this  provision,  we  must  at  the 
same  time  admit,  that  the  Legislature  did  not  intend  to 
affect  voluntary  settlements,,  unless  they  were  actually 
fraudulent ;  for  voluntary  settlements  are  void  against 
purchasers  under  the  second  section  of  the  act,  which  has 
already  been  discussed.  This  clause  therefore  would, 
under  the  construction  put  upon  it  by  Mr.  Powell,  have 
scarcely  any  operation(386). 

(o)   See  acct.  Rob.  on  Vol.  Conv.  637. 

(386)  The  Courts,  in  carrying  into  effect  the  statute  against  fraudu- 
lent conveyances  and  giving  to  it  a  proper  interpretation,  have  not  felt 
warranted  in  proceeding  upon  any  broader  ground,  than  this  :  that  they 
are  voidable  only  as  to  creditors  or  pvuchasers  who  may  think  proper 
to  impeach  them  and  are  not  utterly  void.  Thus,  as  against  a  fr<MKlu- 
lent  grantor,  the  conveyance  is  effectual  to  pass  the  title,  and  he  and  his 
representatives  are  nol  at  liberty  to  set  up  a  claim  in  opposition  to  it : 
Osborn  v.  Moss,  7  J.  R.  161  ;  and  for  all  the  purposes  of  a  valid  title 
in  a  bona  fide  purchaser  under  a  fraudulent  grantee,  such  grantee  is,  in 
contemplation  of  law,  vested  with  a  legal  estate.  The  title  vest.<5,  in  the 
grantee,  subject  to  be  devested  whenever  the  creditors  or  persons  ag- 
grieved think  proper  to  call  in  question  the  validity  of  the  transaction. 
When  the  conveyance  is  proved  to  be  fraudulent,  the  judgment  or  de- 
cree of  the  court  declares  the  deed  of  conveyance  void  in  tofo,  as  re- 
spects those  who  have  impeached  it  ;  but  not  as  to  others  This  prin- 
ciple was  settled  in  Anderson  v.  Roberts,  18  J.  R.  515.  and  Mackie  and 
Cairns,  5  Cowen,  547.  One  reason  assigned  in  the  latter  case,  why 
the  judgment,  which  had  been  confessed  by  the  assignor  to  the  assignees 


WITH  POWER  OF  REVOCATION. 


2\\ 


If   a  man  having  a   power  at  a  future  day  to  revoke  a 
settlement  made  by  him,  sell  the  estate  before  the   day 

subsequent  to  the  assignment,  was  held  to  be  ineffectual  for  any  pur- 
pose was,  that  the  assignment,  ahhotigh  fraudulent  as  to  creditors,  was 
valid  as  between  the  parties,  and,  therefore,  no  lien  could  attach  upon 
the  property,  assigned  by  means  of  the  judgment.  So,  in  Murray  v. 
Riggs,  15  J.  R.  571,  where  a  deed  fraudulent  as  to  creditors,  might  be 
made  good  by  subsequent  acts  between  the  grantor  and  the  grantees 
before  steps  were  taken  to  impeach  it.  These  principles  were  stated 
by  the  Vice  Chancellor  in  the  late  case  of  Henriques  v.  Hone,  2  Edw. 
Ch.  R.  120,  where  Moffat  assigned  his  property  to  H.  &  S.  in  trust 
for  his  creditors.  Afterwards  upon  the  application  of  judgment  credi- 
tors, the  assignment  was  decreed  to  be  void  on  the  ground  of  fraud. 
The  complainant  in  this  suit  was  then  appointed  receiver  ;  and  the  as- 
signees were  ordered  to  deliver  to  him  the  trust  property.  Previously, 
however,  to  this  decree  a  part  of  the  property  had  been  delivered  to 
the  defendant,  who  was  an  auctioneer  ;  and  he  had  sold  the  same  and 
rendered  an  account  thereof  not  knowing  the  true  state  of  the  property. 
When  required  to  pay  the  receiver  the  proceeds  of  the  property,  the 
defendant  refused  on  the  ground  that  Moffat  the  debtor  owed  him  a 
larger  amount.  But  the  V.  Ch.  held,  that  in  no  vievv  of  the  cause  had 
the  defendant  any  right  to  retain  or  make  the  set  off;  and  accordingly 
made  a  decree  for  the  payment  of  the  same,  with  interest  and  costs. 
"  The  effect  of  the  decree  was  only  to  divest  the  assignees  of  their 
right  and  control  over  the  property  by  virtue  of  the  assignment,  so  as  to 
have  the  property  applied  to  lawful  purposes,  viz.  to  such  of  the  credi- 
tors, who  pursued  their  legal  remedies  and  thereby  acquired  preferen- 
ces over  others.  And  this  court  then  takes  the  property  under  its  own 
charge  through  its  officer,  a  receiver,  and  appropriates  it  accordingly. 

"  In  practice,  continued  the  V.  Ch.,  it  is  usual  to  direct  a  release  of 
the  right  of  a  party  under  a  deed  which  is  set  aside  as  constructively 
fraudulent.  Doy  i".  Dimhain,  2  J.  C.  R.  194.'  But  it  would  not  be 
necessary  to  direct  a  release  or  reconveyance  where  a  deed  is  declared 
an  absolute  nullity  from  fraud  or  imposition  in  the  manner  of  obtaining 
it,  except  ex  ahimdanti  cuulela.  Livingston  v.  ilubbs,  2  J.  C.  R.  5-12, 
S.  P.  2  Ves.  jr.  294.  The  practice  upon  a  decree  of  requiring  a  re- 
lease or  conveyance  by  a  person  holding  under  u  voidable  deed  upon 
setting  it  aside,  shows  that  the  legal  title,  at  least,  remains  in  him,  and 
does  not  return  and  revest  in  the  original  grantor.  Hence,  the  propriety 
of  requiring  H.  &  S.  (the  assignees)  to  execute  to  the  receiver  a  re- 
lease or  transfer  of  the  property  and  its  proceeds.  It  follows,  that  the 
receiver  must  be  deemed  dc  jure  as  well  as  dc  facto  the  assignee  of  H. 


212  ^^  PliOTECTION  FKO\f  8i:  riLEMENTS, 

arrive,  the  settlement  will  be  void  against  the  purchaser 
at  the  time  when  the  vendor,  according  to  the  terms  of 
the  power,  might  have  revokc^d  the  settiementf/^J. 

And  a  settlement  made  with  power  of  revocation,  will 
be  void  against  a  subsequent  purchaser,  although  the 
grantor  release  or  extinguish  the  power  previously  to  the 
sale  ;  otherwise  the  vendor  might  secretly  release  or  de- 
stroy the  power,  and  then  show  to  the  purchaser  the  con- 
veyance containing  the  power  of  revocation,  and  so 
induce  him  to  buy  the  land(^).  In  the  case,  however,  in 
which  this  was  decided,  the  settlement  appears  to  have 
(*)been  voluntary,  and  the  purchaser  had  not  notice  of 
the  power  being  destroyed.  But  if  a  settlement  should 
be  made  for  valuable  consideration,  with  a  power  of  revo- 
cation, and  the  vendor  should  afterwards  release  the  pow- 
er for  a  valuable  consideration,  it  is  conceived  that  a  pur- 
chaser, subsequently  to  the  destruction  of  the  power, 
could  not  prevail  over  the  settlement. 

The  statute,  as  we  have  seen,  operates  conditionally,  that 
is,  where  the  first  conveyance  is  not  revoked  according  to 
the  power.  The  act  has  no  effect  until  the  donee  of  the 
power  sell  the  estate  without  revoking  the  first  conveyance 
by  virtue  of  his  power.  Suppose,  then,  a  vendor  professes 
to  execute  his  power,  but  it  is  informally  exercised,  will 
the  defect  be  cured  by  the  statute  ?  The  Legislature  in- 
tended to  protect  purchasers  against  fraudulent  settle- 
ments, with  powers  of  revocation,  for  it  is  essential,  to 
bring  a  case  within  the  act,  that  the  estate  should  be  sold, 
and  the  first  convevance  not  be  revoked  according  to  the 

(;))   3To.  618  ;  3  Rep.  62  b  ;  Bridg.  23. 
(?)   Bullock  r.  Thoi-ne,  Mo.  615. 


&  S.  and  deriving  in  and  through  them  title,  and  not  immediately  from 
^Moffat.  Were  it  otherwise,  as  between  Moflat  and  H.  &  S.  the  as- 
signment wa?  gond  :  and  Hone  could  not  retain  the  property  to  pay 
hi6  own  debt. 


WITH  POWER  OF  REVOCATION. 


213 


power  reserved  to  the  grantor  by  such  secret  conveyance. 
The  non-execution  of  the  power  is  the  fraud  which  the 
statute  intended  to  avoid.  The  conveyances  against 
which  the  act  was  intended  to  operate  were  presumed  to 
be  secret.  It  was  not  meant  to  relieve  any  man  who 
was  aware  of  the  existence  of  the  power,  and  might  have 
required  it  to  be  exercised.  The  statute  was  not  intend- 
ed to  operate  as  a  mode  of  conveyance.  But  without  in- 
sisting that  where  a  purchaser  is  aware  of  the  settlement, 
he  must  require  the  power  to  be  executed,  it  may  be 
urged,  that  where  a  purchaser  does  rest  his  title  on  the 
execution  of  the  power,  he  rejects  the  aid  of  the  Leg- 
islature, and  takes  his  title  under  and  not  in  opposition  to 
the  settlement ;  and  can,  therefore,  only  stand  in  the 
same  situation  as  any  other  purchaser  who  has  unfortu- 
nately taken  an  estate  under  a  power  defectively  executed. 
The  purchaser  can  scarcely  be  held  lo  have  a  good  legal 
(*)title,  unless  the  vendor  not  only  attempted  to  execute 
the  power,  but  actually  conveyed  the  estate  to  him. 

SECTION  ir. 
Of  Protection  from  Charitable  Uses. 


In  the  statute  of  charitable  uses(/)  is  a  proviso,  that  no 
person  who  shall  purchase  or  obtain,  upon  valuable  con- 
sideration of  money  or  land,  any  estate  or  interest  of 
or  in  any  lands,  8ic.  that  shall  be  given  to  any  of  the 
charitable  uses  mentioned  in  the  statute,  without  fraud 
or  covin   (having  no  notice  of  the  same  charitable  uses), 

r)   43  Eliz.  c.  4. 


214  ^*'  PROTECTION  FROM  CHARITABLE  USES. 

shall   be  impeached  by  any  decrees  of  the  commissioners 
therein  mentioned. 

A  purchaser  who  hath  bought  for  an  inadequate  con- 
sideration is  not  within  this  proviso ;  and  the  adequacy 
of  the  consideration  is  measured  according  to  the  rule  of 
the  civil  law ;  but  if  one  purchase  lands  under  half  the 
value,  and  sell  to  another  upon  good  consideration  bona 
Jide,  the  fraud  is  purged(5). 

If  a  rent-charge  be  granted  out  of  land  to  a  charitable 
use,  and  the  land  is  afterwards  sold  for  valuable  consi- 
deration to  one  who  has  no  notice,  it  has  been  said  the 
rent  remains ;  because  the  purchase  was  of  another  thing 
that  was  not  given  to  the  charitable  use(^)  :  but  in 
Tothil(M),  the  same  case  is  referred  to  as  an  authority, 
that  a  purchaser  coming  in  without  notice  of  a  rent- 
charge  shall  not  be  chargeable  therewith,  although  given 
to  a  charitable  use.  The  correct  distinction  seems  to  be, 
(*)that  where  the  rent-charge  is  legal,  it  must,  like  every 
other  legal  incumbrance,  bind  the  purchaser,  although 
he  purchased  witiiout  notice  ;  but  that  where  it  is  a  mere 
equitable  charge,  the  commissioners  shall  not  make  any 
decree  for  payment  of  it  against  the  purchase  r,  if  he 
purchased  without  notice. 

If  the  first  purchaser  gave  a  valuable  consideration,  and 
yet  had  notice,  all  that  claim  in  privity  under  his  estate 
and  title,  whether  they  have  notice  or  not,  will  be  bound 
by  the  decrees  of  the  commissioners(.r). 

This  rule,  as  we  shall  hereafter  see,  differs  from  the 
general  rule  of  equity  in  this  respect — a  subsequent  pur- 
chaser without  notice  not  being  affected  by  notice  in  the 
person  of  whom  he  purchased. 

(s)    Vide  supra.  Vol.  1,  p.  272  ;   Duke,  177. 

[t)  East  Greenstead's  case,  Duke,  64  ;  and  see  Peacock  v.  Thewer, 
Duke,  82. 

(m)  Toth.  226. 

(r)  East  Greenstead's  case,  Duke,  64  ;  and  see  ibid.  173. 
*183) 


OF  PROTECTION  FROM  ACTS  OF   BANKRUPTCY. 


215 


With  this  exception,  however,  the  same  rules  seem  to 
prevail  in  the  construction  of  the  act,  with  respect  to  no- 
tice, as  are  generally  adopted  by  eqiiity(?/). 

SECTION    HI. 
Of  Protection  from  Acts  of  Bankruptcy. 


I.  By  the  statute  13  Eliz.  c.  7,  a  purchaser  would  be 
defeated,  although  there  should  be  forty  years  after  an  act 
of  bankruptcy,  and  before  a  commission  ;  and  although 
the  purchaser  had  no  notice  ;  for  the  words  of  the  statute 
are  general  after  bankruptcy^  and  the  proviso  in  the  end 
of  the  statute  makes  it  still  plainer,  viz. :  That  assurances 
made  by  a  bankrupt  before  bankruptcy,  and  bona  Me,  shall 
not  be  defeated. — This  was  hard  doctrine  against  fair  pur- 
chasers without  notice  ;  but  so  the  law  was(2:). 

With  a  view  to  prevent  this  injustice,  and  at  the  same 
time  to  preserve  to  creditors  their  just  rights,  and  perhaps 
(*)in  analogy  to  the  statute  of  fines,  it  was  by  the  21  Jac. 
l,c.  19,  s.  14,  enacted,  that  no  purchase  for  good  and  valu- 
able consderation  should  be  impeached  by  virtue  of  that 
act,  or  any  other  act  theretofore  made  against  bankrupts, 
unless  the  commission  to  prove  him  a  bankrupt  should  be 
sued  forth  against  such  bankrupt  within  five  years  after 
he  should  become  a  bankrupt. 

But  even  after  this  provision  it  was  dangerous  to  pur- 
chase an  estate  from  a  trader ;  for  an  act  of  bankruptcy 

iy)  Ibid. 

(?)  See  For.  66,  67. 

(*184) 


216  OF  PROTECTION  FROM 

might  -have  been  committed  within  five  years  before, 
which  would  reach  the  estate(ft). 

It  has  been  decided,  that  if  a  purchaser  have  notice  of 
the  act  of  bankruptcy,  he  is  not  a  purchaser  within  the 
meaning  of  the  statute,  and  consequently  is  not  entitled 
to  the  benefit  of  it(6)  :  but  if  the  act  of  bankruptcy  arise 
by  the  execution  of  a  fraudulent  deed,  notice  of  the  deed, 
without  notice  of  the  fraud,  will  not  be  deemed  notice  of 
the  bankruptcy(c).  This  is  a  point  which  frequently 
occurs  in  practice  ;  a  deed  appears  upon  an  abstract,  by 
which  the  owner,  being  subject  to  the  bankrupt  laws, 
conveys  all  his  estate  for  the  benefit  of  his  creditors,  and 
to  which  all  the  creditors  are  stated  to  be  parties(J). 
Now,  supposing  the  title  to  be  so  circumstanced,  that  the 
purchaser  could  not  be  affected  by  an  act  of  bankruptcy, 
unless  he  had  notice  of  it,  the  question  at  once  arises, 
whether  notice  of  the  deed  is  notice  of  any  creditor  not 
having  executed  it,  in  which  case  the  deed  would  be 
fraudulent,  and  an  act  of  bankruptcy.  This  is  a  very 
important  question,  as  it  is  impossible  to  give  evidence  of 
all  the  creditors  having  executed.  But  it  seems  to  follow 
from  the  decision  in  Read  v.  Ward,  that  the  purchaser 
(*)would  not  be  held  to  have  had  notice  that  all  the  credi- 
tors were  hot  parties  to  the  deed  ;  and  this  opinion  ap- 
pears to  be  adopted  in  practice. 

To  avoid  a  purchase,  the  act  of  bankruptcy  must  be 
committed  within  five  years  before  the  commission(e). 
The  five  years  are,  however,  computed  from  the  last  act 
of  bankruptcy  preceding  the  sale  ;  for  the  words  of  the 
statute  are  not  after  he  shall  first  be  a  bankrupt,  but  only 

(a)  See  4  Ves.  jun.  39S. 

(6)   Read  v.  Ward,  2  Eq.  Ca.  Abr.  119  ;   7  Vin.  Abr.  119  ;   Mount- 
ford  V.  Ponten,  1  Mont.  79. 
(c)   S.  C. 

(rf)   See  now  6  Geo.  4,  ch.  16,  s.  4,  post. 
(c)   Radford  v.  Bloodworth,  1  Lev.  13. 
(*185) 


ACTS  OF  BANKRUPTCY. 


217 


after  becoming  bankrupt  generally(/)  ;  and,  therefore,  if 
after  several  acts  of  bankruptcy  an  estate  is  sold  by  the 
bankrupt,  and  a  commission  issues  within  five  years  from 
the  last  act,  the  sale  will  be  avoided(o-).  But  no  act  of 
bankruptcy  after  the  sale  will  aft'ect  the  purchaser  ;  and 
consequently  his  title  will  not  be  impeached  by  any  com- 
mission issued  after  five  years  from  the  act  of  bankruptcy 
immediately  preceding  the  sale(/i). 


II.  Thus  the  law  stood  until  Romilly's  act  for  amend- 
ing the  laws  relating  to  bankrupts(/),  by  which,  after 
reciting  that  great  inconveniences  and  injustice  had  been 
occasioned  by  reason  of  the  fair  and  honest  dealings  and 
transactions  of  and  with  traders  being  defeated  by  secret 
acts  of  bankruptcy,  in  cases  not  already  provided  for,  or 
not  sufficiently  provided  for  by  law,  it  was  enacted,  that 
in  all  cases  of  commissions  iher e after ,  to  be  issued,  all 
conveyances  by,  all  payments  by  and  to,  and  all  contracts 
and  other  dealings  and  transactions  by  and  with,  any 
bankrupt  bona  fide  made  or  entered  into  more  than  two 
calendar  months  before  the  date  of  such  commission, 
(*)should,  notwithstanding  any  prior  act  of  bankruptcy 
committed  by  such  bankrupt,  be  good  and  effectual  to  all 
intents  and  purposes  whatsoever,  in  like  manner  as  if  no 
such  prior  act  of  bankruptcy  had  been  committed,  pro- 
vided the  person  or  persons  so  dealing  with  such  bank- 
rupt had  not  at  the  time  of  such  conveyance,  payment, 
contract,  dealing  or  transaction,  any  notice  of  any  prior 
act  of  bankruptcy  by  such  bankrupt  committed,  or  that 
he   was  insolvent,  or  had   stopped   payment.     And   it  is 

(/)   Spencer  r.  Venacre,  1  Keb.  722  ;    1  Lev.  14. 

{g)  Jelliffr.  Horn,  1  Keb.  12,  cited  ;  Radford  r.  Bloodworth,  1  Lev. 
13;   1  Keb.  11. 

{h)  Spencer  v.  Venacre,  1  Keb.  722  ;  and  see  Cnllen's  B.  L.  241. 

(t)  46  Geo.  3,  c.  135,  extended  to  executions  juid  atlacbmcnts  by 
49  Geo.  3,  c  121,  s.  2. 

VOL.   11.  28  {*1S6) 


218  OF  PROTECTION  FROM 

provided,  that  the  issuing  of  a  commission  of  bankruptcy 
against  such  bankrupt,  although  such  commission  shall 
afterwards  be  superseded,  or  the  striking  of  a  docket  for 
the  purpose  of  issuing  a  commission  against  such  bank- 
rupt, whether  any  commission  shall  have  actually  issued 
thereupon  or  not,  shall  be  deemed  notice  of  a  prior  act  of 
bankruptcy  for  the  purposes  of  the  act ;  if  it  shall  appear 
that  an  act  of  bankruptcy  had  been  actually  committed  at 
the  time  of  the  issuing  such  commission,  or  striking  such 
docket. 

The  better  opinion  appears  to  be,  that  neither  an  act  of 
bankruptcy,  nor  a  commission  of  bankruptcy,  is  of  itself 
notice  to  a  purchaser ;  and  that  notwithstanding  the  sta- 
tute of  James,  a  purchaser  who  has  got  in  a  prior  legal 
estate  without  notice  of  a  commission  or  act  of  bank- 
ruptcy, may  protect  himself  against  it(A;).  But  under 
Romilly's  act,  a  purchaser  cannot  avail  himself  of  a  prior 
legal  estate  if  a  commission  was  actually  issued,  or  a 
docket  struck  previously  to  his  purchase,  although  he  had 
not  actual  notice  of  the  issuing  of  the  commission  or  strik- 
ing of  the  docket,  because  the  statute  expressly  makes 
those  acts  constructive  notice. 

It  should  seem,  however,  that  the  provision  in  the 
statute  of  James,  in  favor  of  purchasers,  is  not  repealed 
by  the  late  act.  If  it  be  not,  then  a  purchaser  will  not 
(*)be  bound  by  the  constructive  notice  established  by  the 
late  act,  where  he  does  not  claim  the  benefit  of  it.  Thus, 
if  it  should  appear  that  a  commission  had  been  issued  or 
a  docket  struck  prior  to  the  purchase,  the  purchaser  could 
not  claim  the  benefit  of  the  late  act,  although  he  had  not 
actual  notice  of  the  commission  or  docket ;  but  if  more 
than  five  years  had  elapsed  since  the  purchase,  and  a  new 
commission  were  then  to  issue,  it  should  seem  that  he  may 
insist  upon  the  benefit  of  the  act  of  James.     So  where  a 

{k)   See  this  considered,  Mi/)a,  Ch.  17. 
(*187) 


ACTS  OF  BANKRUPTCY.  2]  9 

purchaser  bona  fide,  and  without  notice,  has  a  prior  legal 
estate,  he  may,  notwithstanding  either  of  the  acts,  make 
use  of  it  as  a  protection  against  the  assignees.  The 
grounds  of  tliis  opinion  upon  the  late  act  are,  that  it  was 
passed  in  favor  of  purchasers ;  that  it  does  not  say 
affirmatively,  that  a  commission  issued  two  months  after 
a  conveyance  shall  bind  where  a  commission  has  been 
issued,  or  a  docket  struck  prior  to  the  purchase,  but 
merely  enacts  negatively,  that  a  commission  issued  after 
that  time  shall  not  bind,  unless  a  commission  was  issued 
or  a  docket  struck  before  the  purchase. 

The  exp<'ess  enactment,  that  the  striking  a  docket  or 
issuing  a  commission  shall  operate  as  a  constructive 
notice  to  purchasers,  seems  to  exclude  all  othe*-  kinds  of 
constructive  notice,  so  far  as  any  aid  is  sought  from  this 
statute :  the  Legislature  having  expressly  declared  that 
these  two  particular  acts  shall  be  deemed  constructive 
notice,  it  must  be  inferred  that  they  intended  no  other  act 
should  have  that  effect.  Therefore  there  is  ground  to 
contend,  that  if  a  commission  has  not  been  issued  or  a 
docket  struck,  a  purchaser  may  avail  himself  of  the  sta- 
tute, although,  for  instance,  his  solicitor  had  express 
notice  that  the  vendor  had  committed  an  act  of  bank- 
ruptcy. Against  this  construction,  it  might,  perhaps,  be 
argued,  that  as  neither  the  striking  of  a  docket,  nor  the 
issuing  of  a  commission,  was  prior  to  the  statute  of  itself 
(*)notice  to  a  purchaser,  the  intention  must  have  been  to 
make  those  acts  constructive  notice,  in  addition  to  the 
acts  which  equity  already  deemed  tantamount  to  actual 
notice.  Cases  of  actual  notice  will  entirely  deprive  the 
purchaser  of  the  benefit  of  the  act. 

The  provision  which  makes  the  striking  of  a  docket 
notice,  in  all  events,  was  not  approved  of(/).  It  was  not 
originally  in  the  act,  and  has  since  been  repealed(/«). 

(/)   Rex  I'.  Bullock,  1  Taunt.  71  ;   14  Ves.  jun.  462. 
[m)  49  Geo.  3,  c.  121. 

(*188) 


220  O^  PROTECTION  FROM 

It  is,  as  we  have  seen,  also  provided,  that  to  claim  the 
benefit  of  the  act,  the  purchaser  must  not  have  notice  that 
the  bankrupt  was  insolvent,  or  had  stopped  payment.  If 
it  should  be  thought  that  insolvency  and  stopping  pay- 
ment do  not  mean  the  same  thing,  considerable  difficulty 
must  frequently  arise  on  this  provision.  Insolvency  of 
itself  appears  to  include  not  merely  a  stoppage  of  pay- 
ment, but  an  inability  to  pay ;  unless,  however,  the 
evidence  of  insolvency  be  confined  to  an  actual  stoppage, 
it  would  not  be  easy  to  say  what  shall  be  deemed  notice 
of  it. 

Since  the  above  observations  were  written,  it  has  been 
decided,  that  the  insolvency  mentioned  in  the  statute, 
means  a  general  inability  in  the  bankrupt  to  answer  his 
engagements(n). 

In  a  late  case(o),  Mr.  Justice  Le  Blanc  said,  that  he 
took  insolvency,  as  it  respects  a  trader,  to  mean  that  he  is 
not  in  a  situation  to  make  his  payments  as  usual,  and 
that  it  does  not  follow  that  he  is  not  insolvent  because  he 
may  ultimately  have  a  surplus  upon  the  winding  up  of 
his  affairs ;  and  Mr.  Justice  Bayley  agreed,  that  insol- 
vency means  that  a  trader  is  not  able  to  keep  his  general 
(*)days  of  payment,  and  that  he  is  not  to  be  considered 
as  solvent  because  possibly  his  affairs  may  come  round. 

The  provision,  that  the  issuing  of  a  commission  shall 
be  notice,  although  such  commission  shall  afterwards  be 
superseded,  extends  even  to  a  commission  which  has 
been  superseded,  without  being  opened,  although  it  was 
contended,  that  the  Legislature  must  have  meant  a  com- 
mission opened,  and  acted  upon,  though  afterwards  su- 
perseded (jt?), 

(n)   Anon.  1  Camp.  Ca.  491,  n.     See  Abrahams.  George,  11  Price, 
423  ;   Spralt  v.  Hobhouse,  4  Bing.  173  ;   12  Moo.  395,  S.  C. 
(o)  Bayly  v.  Schofield,  1  Mau.  &  Selw.  338. 
(jo)  Watkins  v.  Maund,  3  Camp.  Ca.  308. 
(*lfi9) 


ACTS  OF  BANKRUPTCY.  221 

III.  The  law  has  again  been  altered  by  the  act  of  the 
6th  of  the  late  King.  The  observations  already  made 
show  how  the  law  stood  before  that  act,  which  is  still 
necessary  to  be  known,  and  therefore  those  observations 
are  retained. 

The  act  referred  to  contains  the  following  provisions 
relating  to  purchasers : 

1.  By  the  81st  section(9)  it  is  enacted,  that  all  con- 
veyances by,  and  all  contracts  and  other  dealings  and 
transactions  by  and  with,  any  bankrupt  bona  fide  made 
and  entered  into  more  than  two  calendar  months  before 
the  date  and  issuing  of  the  commission  against,  and  all 
executions  and  attachments  against,  the  lands  and  tene- 
ments or  goods  and  chattels  of  such  bankrupt,  bona  fide 
executed  or  levied  more  than  two  calendar  months  before 
the  issuing  of  such  commission,  shall  be  valid,  notwith- 
standing any  prior  act  of  bankruptcy  by  him  committed, 
provided  the  person  or  persons  so  dealing  with  such 
bankrupt,  or  at  whose  suit,  or  on  whose  account,  such 
execution  or  attachment  shall  have  issued,  had  not  at  the 
time  of  such  conveyance,  contract,  dealing  or  transaction, 
(*)or  at  the  time  of  executing  or  levying  such  execution 
or  attachment,  notice(r)  of  any  prior  act  of  bankruptcy  by 
him  committed(5) ;  provided  also,  that  where  a  commis- 
sion has  been  superseded,  if  any  other  commission  shall 
issue  against  any  person  or  persons  comprised  in  such 
first  commission  within  two  calendar  months  next  after  it 
shall  have  been  superseded,  no  such  conveyance,  con- 
tract, dealing  or  transaction,  execution  or  attachment, 
shall  be  valid,  unless  made,  entered  into,  executed  or 
levied  more  than  two  calendar  months  before  the  issuing 
the  first  commission, 

(9)   6  Geo.  4,  c.  16  ;   see  1  &  2  Will..4,  c.  66  ;  3  &  4  Will.  4,  c.  47. 
(r)   That  he  was  insolvent  or  had  stopped  payment  onnitled. 
(s)  46  Geo.  3,  c.  135,  s.  1,  and  49  Geo.  3,  c.  121,  s.  2. 

(*190) 


2^  OF  PROTECTION  FROM 

2.  And  by  section  83  it  is  enacted,  that  the  issuing  of 
a  commission  shall  be  deemed  notice  of  a  prior  act  of 
bankruptcy  (if  an  act  of  bankruptcy  had  been  actually 
committed  before  the  issuing  of  the  commission),  if  the 
adjudication  of  the  person  or  persons  against  whom  such 
commission  has  issued  shall  have  been  notified  in  the 
London  Gazette,  and  the  person  or  persons  to  be  affected 
by  such  notice  may  reasonably  be  presumed  to  have  seen 
the  same(i). 

3.  And  by  s.  85  it  is  enacted,  that  if  any  accredited 
agent  of  any  body  corporate  or  public  company  shall  have 
had  notice  of  any  act  of  bankruptcy,  such  body  corporate 
or  company  shall  be  thereby  deemed  to  have  had  such 
notice(w). 

4.  And  by  the  86th  section  it  is  enacted,  that  no  pur- 
chase from  any  bankrupt,  bona  jide  and  for  valuable  con- 
sideration, where  the  purchaser  had  notice  at  the  time  of 
such  purchase  of  an  act  of  bankruptcy,  by  such  bankrupt 
committed,  shall  be  impeached  by  reason  thereof,  unless 
(*)the  commission  against  such  bankrupt  shall  have  been 
sued  out  within  twelve  calendar  months(«;)  after  such  act 
of  bankruptcy (?<?). 

5.  And  by  the  87th  section  it  is  enacted,  that  no  title 
to  any  real  or  personal  estate  sold  under  any  commission, 
or  under  any  order  in  bankruptcy,  shall  be  impeached  by 
the  bankrupt,  or  any  person  claiming  under  him,  in- 
respect  of  any  defect  in  the  suing  out  of  the  commission, 
or  in  any  of  the  proceedings  under  the  same,  unless  the 
bankrupt  shall  have  commenced  proceedings  to  supersede 
the  said  commission,  and  duly  prosecuted  the  same  within 
twelve  calendar  months  from  the  issuing  thereof.     But 

{I)   See  Spratt  v.  Hobhouse,  4  Bing.  173  ;  12  Moo.  396,  S.  C. 

[v)   Ibid,  , 

(u)  Instead  of  five  years. 

(t»)    21  Jac.  l,c.  19,  s.  14. 

(*191) 


ACTS  OF  BANKRUPTCY.  223 

this  provision  does  not  protect  a  purchaser  against  the 
claim  of  an  assignee  under  a  subsequent  commission, 
after  the  first  commission  under  which  he  purchased  has 
been  superseded  (a:). 

6.  And    it  is  enacted    by  section  4,  that  where  any 
trader  within  the  act,  shall,  after  the  act  shall   have  come 
into    effect,  execute   any  conveyance  or  assignment   by 
'  deed  to  a  trustee  or  trustees  of  all   his  estate  and  effects 
for  the  benefit  of  all  the  creditors  of  such  trader,  the  exe- 
cution of  such  deed  shall   not  be  deemed  an  act  of  bank- 
ruptcy, unless  a  commission    issue  against    such  trader 
within  six  calendar  months  from  the  execution  thereof  by 
such  trader  ;  provided  that  such  deed  shall  be  executed 
by  every  such  trustee  within  fifteen  days  after  the  execu- 
tion thereof  by  the  said  trader  ;  and  that  the  execution  bv 
such  trader,  and   by  every  such  trustee,  be  attested  by  an 
attorney  or  solicitor  ;  and  that  notice  be  given  within  two 
months  after  the  execution  thereof  by  such  trader,  in  case 
such  trader  reside  in  London,  or  within  forty  miles  thereof, 
(*)in  the  London  Gazette,  and  also  in  two  London  daily 
newspapers ;  and    in  case   such  trader   does   not   reside 
within  forty  miles  of  London,  then  in  the  London  Gazette, 
and  also  in  one  London  daily  newspaper,  and  one  pro- 
vincial  newspaper  published  near  to  such  trader's  resi- 
dence, and  such  notice  shall  contain  the  date  and   execu- 
tion of  such  deed,   and    the  name  and    place  of   abode 
respectively  of  every  such  trustee,  and  of  such  attorney 
or  solicitor. 

(x)  Gould  V.  Shoyer,  6  Bing.  738  ;  4  Moo.  &  P.  636,  S.  C. 

(*192) 


224 


OF  PROTECTION  FROM  JUDGMENTS. 


SECTION  IV. 
Of  Protection  from  Judgments  and  Recognizances. 


■fe 


I.  By  a  fiction  in  law,  all  judgments  were  supposed  to 
be  judgments  of  the  first  day  of  the  term  in  which  they 
were  obtained  ;  and  therefore  a  purchaser  might  have  his 
estate  incumbered  by  a  judgment  acknowledged  subse- 
quently to  his  purchase(?/). 

To  obviate  this  injustice,  it  was  enacted (2),  that  any 
judge  or  officer  of  any  of  His  Majesty's  Courts  of  West- 
minster, that  should  sign  any  judgments,  should,  at  the 
signing  of  the  same,  set  down  the  day  of  the  month  and 
year  of  his  so  doing,  upon  the  paper  book,  docket  or 
record,  which  he  should  sign  ;  which  day  of  the  month 
and  year  should  also  be  entered  on  the  margin  of  the  roll 
of  the  record  where  the  said  judgment  should  be  entered, 
and  such  judgments,  as  against  purchasers  bona  fide  for 
valuable  considerations  of  lands,  tenements  or  heredita- 
ments, (*)to  be  charged  thereby,  should  in  consideration 
of  law  be  judgments  only  from  such  time  as  they  should 
be  so  signed,  and  should  not  relate  to  the  first  day  of  the 
term  whereof  they  were  entered,  or  the  day  of  the  return 
of  the  original,  or  filing  the  bail.  And  this  provision  has 
been  since  extended  to  the  Courts  of  Great  Session  in 
Wales,  and  to  the  Courts  of  Session  in  the  counties  pala- 
tine of  Chester,  Lancaster  and  Durham(a). 

{y)   Vide  supra,  Vol.  1,  p.  539,  as  to  judgments, 
(s)  29  Car.  2,  c.  3,  s.  14,  15. 
(a)  8  Geo.  1,  c.  25,  s.  6. 
(*193) 


OF  PROTECTION    FROM  JUDGMENTS. 


225 


But  tliough  this  settled  all  dilTerences  respecting  the 
fiction  of  law,  whereby  judgments  were  supposed  to  be  all 
of  the  first  dav  of  the  term,  by  compelling  the  party  to  set 
down  the  particular  period  when  the  judgment  was  signed, 
and  declaring  that,  as  against  purchasers  bona  fide  for  a 
valuable  consideration,  the  lands,  tenements  and  heredi- 
taments lo  be  charged  thereby,  should  be  charged  only 
from  such  time  as  the  judgment  was  signed  ;  yet,  inas- 
much as  it  did  not  compel  the  plaintiff  to  carry  in  the 
judgment  roll,  purchasers  and  others  were  rendered 
almost  incapable  of  discovering  what  judgments  were. 
recovered(6j. 

And,  therefore,  by  another  statute(c)  it  was  enacted, 
that  the  clerk  of  the  essoigns  of  the  Court  of  C.  B.,  the 
clerk  of  the  doggets  of  the  Court  of  B.  R.  and  the  master  of 
the  office  o/  pleas  in  the  Court  of  Exchequer,  should  make 
and  put  into  an  alphabetical  dogget,  by  the  defendants 
names,  of  all  the  judgments  entered  in  their  respective 
Courts  of  Michaelmas  and  Hilary  terms,  before  the  last 
day  of  the  ensuing  terms  ;  and  of  the  judgments  of  Easter 
and  Trinity  terms,  before  the  last  day  of  Michaelmas 
term  ;  and  that  no  judgments  should  affect  lands  or  tene- 
ments as  to  bona  fide  purchasers  for  valuable  considera- 
tion, (*)unless  docketed  and  entered  according  to  the  act; 
and  it  is  directed  that  every  dogget  shall  be  put  into  and 
kept  in  books  in  parchment,  to  be  searched  by  all  persons, 
at  reasonable  times,  paying  fourpence  for  searching  every 
term. 

"  Dockets  or  indexes  to  judgments  were  in  use  long 
before  this  statute.  They  were  invented  by  the  Courts 
for  their  own  ease,  and  the  security  of  purchasers,  to  avoid 
the  trouble  and.  inconvenience  of  turning  over  the  rolls  at 

(6)   Robinson  v.  Harrington,  1  Pow.  Mort.  618,  4th  edit.  S.  C.  MS. 
(e)    4  &  5  W.  &  M.  c.  20,  made  perpetual   by  7  and  S  W.  3,  c.  36, 
s.  3. 

VOL.   II.  29  (*194; 


22Q  OF  PROTECTION  FROM  JUDGMENTS. 

large.  The  statute  of  William  and  Mary  did  not  super- 
sede the  former  practice  of  docketing  the  judgment  in 
parchment  or  paper,  which  is  still  necessary  to  be  done  by 
the  attornies  on  entering  and  bringing  in  the  rolls ;  but 
was  intended  to  operate  in  addition  to  that  practice,  by 
requiring  the  dockets  to  be  entered  in  alphabetical  order 
by  the  officers  of  the  Court(f/)." 

Now,  upon  the  provisions  of  this  act  it  has  been  ob- 
served, that  judgments  cannot  be  docketed  after  the  time 
mentioned  in  the  act ;  and  the  practice  of  the  clerks  in 
docketing  them  after  that  time  is  only  an  abuse  for  the 
sake  of  their  fees,  and  ineffectual  to  the  party(e).  And 
as  the  object  of  the  act  is  to  enable  purchasers  to  discover 
judgments  by  the  names  of  the  persons  against  whom 
they  are  entered,  if  the  name  of  a  defendant  be  falsely 
entered,  as  Compton  for  Crompton,  the  judgment  will  be 
void  against  purchasers,  and  the  Court  will  not  amend 
the  record  (/). 

If  it  is  wished  to  enter  a  judgment  as  of  a  term,  it  must 
be  actually  entered  before  the  essoign-day  of  the  succeed- 
ing term  ;  and  Lord  C.  J.  Holt  has  said,  that  if  judgment 
be  signed  in  a  term,  and  in  the  subsequent  vacation  the 
(*)defendant  sells  lands,  and  before  the  essoigns  of  the 
next  term  the  plaintiff  enter  his  judgment,  it  shall  affect 
the  lands  in  the  hands  of  the  purchaser(,§-).  And  alihough 
this  has  been  doubted(/i),  yet  it  seems  to  be  correct,  as 
the  judgment  is  not  affected  by  the  act  of  Charles  2,  or 
that  of  William  and  Mary.  The  judgment  binds  only 
according  to  the  letter  of  the  stalute  of  Charles  ;  and  it  is 
not  required   to   be  docketed  by  the  act   of  William  and 

{d)  Tidd's  Pract.  858.  860.  3.1  edit;   Gilb.  C.  P.  140. 
(e)  Per  Master  of  the  Rolls,  in  Forshall  r.  Coles,  Appendix,  No.  20, 
sed  qti. 

if)   Sale  V.  Crompton,  1  Wils.  61  ;   2  Sfr.  1209. 
ig)   Hodges  V.  Templar.  6  Mod.  191. 

(h)  Tidd's  Pract.  857;   Bac.  Abr.  by  Gwiil.  tit.  Execution  (I)  n. 
(*196) 


OF  PROTECTION  FRO.M  JUDGMENTS.  22? 

Mary,  till  before  the  last  day  of  the  subsequent  term. 
And  there  is  no  inconvenience  in  this  rule,  for  I  find,  upon 
inquiry,  that  the  practice  is  to  index  judgments  as  soon 
as  they  are  signed,  in  order  to  enable  purchasers  to  search 
for  them  with  facility.  But  this  practice  is  wholly  inde- 
pendent of  the  directions  of  the  act  by  which  judgments 
are  required  to  be  docketed. 

Although  a  judgment  is  not  duly  docketed,  and  there- 
fore void  against  a  purchaser,  yet  if  the  purchaser  has 
notice  of  it,  and  did  not  pay  the  value  of  the  estate,  it 
will  be  presumed  that  he  agreed  to  pay  off  the  judgment, 
and  equity  will  compel  him  to  pay  it(i). 

The  general  rule  of  equity  would  warrant  an  assertion, 
that  the  case  would  be  the  same  although  no  agreement 
were  made.  In  the  case  of  Forshall  v..  Coles(A;),  how- 
ever, it  appears  that  the  Master  of  the  Rolls  held  decid- 
edly that  notice  of  a  judgment  not  docketed  was  not 
material.  But  this  decision  cannot  be  relied  on :  the 
effect  of  it  would  be  to  overrule  all  the  decisions  on  the 
statutes  for  registry(/).  They  were  passed  for  precisely 
the  same  purpose  as  the  act  of  William  and  Mary,  viz.  to 
enable  purchasers  readily  to  discover  incumbrances  ;  and 
(*)therefore,  if  a  purchaser  has  notice  of  any  judgment, 
the  statute  does  not  in  equity  extend  to  him,  as  he  is 
already  in  possession  of  what  the  Legislature  intended  to 
furnish  him  with.  This  point,  upon  which  a  considerable 
difference  of  opinion  recently  prevailed  in  the  Profession, 
has  lately  been  decided  by  Lord  Lldon  in  favor  of  the 
judgment  creditor.  The  case  of  Forshall  v.  Coles  is 
therefore  overruled(?7t). 

(0   Thomas  v.  Pledwell,  7  Yin.  Abr.  53,  pi.  5 ;  2  Eq.  Ca.  Abr.  684, 
pi.  7. 

(k)  7  Vin.  Abr.  54,  pi.  6  ;  2  Eq.  Ca.    Abr.   692,   pi.  8  ;   S.  C.  MS. 
a  better  note,  Appendix,  No.  20. 

(/)    Vide  infra,  sect.  5. 

(m)  Davis  r.  Earl  of-Strathmore,  16  Ves.  jun.  419. 

(*196) 


o^Q  OF  PROTECTION  FROM  JUDGMEiNTS. 

The   Statute  of  21  Jac.  l(w),  for  the   better  division  of 
the   estates   of  bankrupts,  enacted,  that  all   creditors   by 
judo-ment,  whereof  execution  was  not  served  and  executed 
before  the  bankruptcy,  should  only  come  in  rateably  wilh 
the  other  creditors  ;     and   this  is  carried  still  farther  by 
the  late  act(o).     In  general,  therefore,  judgments  against 
a  bankrupt  are  not  material  where  the  estate  is  sold  by  his 
assignees.     In  a  late  case(p),  a  man  sold  a  freehold  estate, 
and  the  conveyance  was  executed    by  all    the  material 
parties  ;  but  no  part  of  the  money  was  paid,  and  the  con- 
veyance remained  in  the  seller's  hands.     In  this  stage  he 
became  a  bankrupt,  and  a  commission  issued  against  him  ; 
and  it  appeared  that  judgments  were  entered   up  against 
him  previous  to  the  bankruptcy.     The  purchaser  required 
satisfaction  to  be  entered  up  on  the  judgments.      This 
was  resisted  on  the  ground   that,  by  the  statute  of  James 
1,  the  judgment  debts  were  reduced  to  a  level  with  the 
simple  contract  debts,  for  the  object  of  that  statute  was 
to  put  all  the  creditors  on  an  equality(7).     Now,  it  was 
clear  that  the  seller  had  an  equitable  lien  on  the  land  for 
its  whole  value,  and  that  the  money  would  go  to  the  as- 
signees :  and,  consequently,  if  the    judgment    creditors 
could  execute  their  judgments  against  the  purchaser,  they 
(*)would  obtain  a  preference  over  the  other  creditors  ;  for, 
of  course,  the  purchaser  was  not  to  pay  his   money,  and 
also   be  liable  to  the  judgments.     The  case   of  Orlebar 
V.  Fletcher(r),  appeared  to  be  a    stronger  case  against  the 
judgment  creditors  than  the  present,  for   there   the  pur- 
chaser had   paid  the  greater  part  of  the   purchase-money 
before  the  bankruptcy  ;  and  although,  in  the  present  case, 

(n)  Ch.  19,  s.  9. 

(o)   6  Geo.  4,  c.  16,  s.  108. 

(p)   Sloper  V.  Fish,  Rolls,  29th  July  1813  ;  2  Ves.  &  Bea.  145. 

iq)  Lee  Newland  v. ,  1  P.  Wms.  92. 

(r)   1  P.  Wms.  737. 
(*197) 


.J 


OF  PROTECTION  FROM  JUDGMENTS. 


229 


the  conveyance  was  executed,  yet  it  was  not  delivered, 
and  therefore  might  be  considered  as  an  escrow(5)  ;  and 
even  if  it  operated  to  vest  the  legal  estate  in  the  purchaser, 
yet  the  case  was  within  the  spirit  and  meaning  of  the  act 
of  James  ;  because  the  estate  in  effect  formed  part  of  the 
property  to  be  distributed.  Upon  these  grounds  the 
assignees  filed  a  bill  against  the  purchaser  for  a  specific 
performance  ;  but  the  Master  of  the  Rolls  thought  the 
title  too  doubtful  to  enable  him  to  force  it  on  the  pur- 
chaser. 

In  a  later  case,  however(^),  where  a  man  agreed  to 
sell  his  estate,  and  became  a  bankrupt  before  the  convey- 
ance was  executed,  the  same  learned  Judge  held  that  the 
assignees  of  the  seller  could  make  a  title  without  the  con- 
currence of  judgment  creditors  whose  judgments  were 
duly  docketed  before  the  bankruptcy. 


The  21  Jac.  1,  c.  24,  which  enables  persons  to  have 
new  execution  against  the  property  of  debtors  dying  in 
execution,  provides,  that  the  act  shall  not  extend  to  give 
liberty  to  any  person  or  persons,  their  executors  or  admi- 
nistrators, at  whose  suit  or  suits  any  such  party  shall  be  in 
execution,  and  die  in  execution,  to  have  or  take  any  new 
execution  against  any  the  lands,  tenements  or  he'redita- 
ments  (*)of  such  party  dying  in  execution,  which  shall  at 
any  time  after  the  said  judgment  or  judgments  be  by  him 
sold  bona  fide  for  the  payment  of  any  of  his  creditors,  and 
the  money  which  shall  be  paid  for  the  lands  so  sold  either 
paid  or  secured  to  be  paid  to  any  of  his  creditors,  with 
their  privity  and  consent,  in  discharge  of  his  or  their  due 
debts,  or  of  some  part  thereof. 

(s)  Derby  Canal  Company  v.  Wilmot,  8  East,  360.  See  O'Dell  v. 
Wake,  3  Camp.  394,  where  the  deed  was  in  the  possession  of  the  pur- 
chaser's solicitor. 

(/)  Sharpe  v.  Roahde,  2  Rose,  192. 

(*]98) 


230  ^^  PROTECTION  FROM  JUDGMENTS. 

II.  Formerly,  if  goods  had  been  sold  during  long 
vacation,  a  fieri  facias  tested  the  preceding  term  would 
have  over-reached  the  sale,  although  issued  subsequently 
to  it(M). 

To  remedy  this  inconvenience,  it  was  enacted(a;),  that 
no  writ  oi  jitri  facias,  or  other  writ  of  execution,  should 
bind  the  properly  of  goods  against  whom  such  writ  of 
execution  was  sued  forth,  but  from  the  time  that  such  writ 
should  be  delivered  to  the  sheriff,  under-sheriff  or  coroners, 
to  be  executed  ;  and  for  the  better  manifestation  of  the 
said  time,  the  sheriff,  under-sheriff  and  coroners,  their 
deputies  and  agents,  should  upon  the  receipt  of  any  such 
writ,  without  fee  for  doing  the  same,  indorse  upon  the 
back  thereof  the  day  of  the  month  or  year  whereon  he  or 
they  received  the  same(I). 

It  has  been  said(?/),  that  the  whole  intention  of  this 
provision  was  to  secure  purchasers,  under  a  second  exe- 
cution, against  any  former  writ  which  might-  have  been 
delivered  to  the  sheriff.  But  a  purchaser  under  a  second 
execution  was  always  protected  against  any  prior  writ  of 
(*)which  he  had  no  notice,  by  the  rule  of  law,  independ- 
ently of  the  statute  of  frauds(2)  ;  and  the  reason  already 
given  appears  to  be  the  correct  one. 

It  has  been  doubted  whether  the  word  "  goods,"  in 
the  act  referred  to,  extends  to  leasehold  estates ;  and  it 

(«)  Houghton  V.  Rushley,  Skin.  257 ;  and  see  Comb.  145  ;  2 
Ventr.  218. 

{x)   29  Car.  2,  c.  3,  s.  16. 

{y)  Per  Ashhurst,  J.  in  casii  Hutchinson  v.  Johnson,  1  Term  Rep. 
731. 

(2)  See  Smallcomb  v.  Buckingham,  1  Lord  Ray m.  251  ;  Carlh.  419  ; 
Payne  v.  Drewe,  4  East,  523. 

(I)  This  statute  only  operates  in  favor  of  purchasers.  It  was  not 
passed  for  the  benefit  of  the  debtor.  Houghton  v.  Rushley,  sup.  and 
Norden  v.  Needham,  Pasch.  3  W.  &  M.  B.  R.  MS.  In  this  last  case 
it  was  held  that  deeds  and  writings  could  not  be  taken  in  execution. 

(■*199) 


OF  PROTECTION  Fr,OM  JUDGMENTS.  '  231 

appears  by  two  opinions  published  in  Mr.  Rigge's  Obser- 
vations on  Registry,  that  Mr.  Serjeant  Hill  thought  it  did 
not  include  leaseholds,  but  that  they  might  be  extended 
on  a  writ  of  elegit ;  and  consequently  were  bound  from 
the  time  the  judgment  was  duly  entered  and  docketed  ; 
and  that,  on  the  other  hand,  Mr.  Butler  thought  the  word 
"  goods"  did  comprise  leaseholds,  which  therefore  w  ere 
not  bound  until  delivery  to  the  sheriff  of  the  writ  of 
execution. 

It  must  be  admitted,  that  a  leasehold  for  years  may  be 
extended  on  an  elegit,  if  it  is  in  the  possession  of  the  de- 
fendant at  the  time  execution  is  awarded(«).  It  was, 
however,  settled  long  before  the  statute  of  Charles  2, 
that  a  sale  of  chattels  was  good  after  judgment,  although 
not  after  execution  awarded(6)  ;  so  that  as  to  a  term  of 
years  the  command  to  the  sheriff  in  an  elegit  does  not 
overreach  the  sale  in  the  same  manner  as  it  does  in  the 
case  of  a  freehold  estate.  This  distinction  appears  to 
have  been  expressly  taken  in  Fleetwood's  case. 

With  respect  to  judgments,  the  statute  of  frauds  hath 
two  branches  :  the  one  relating  to  judgments  against  real 
estate  ;  the  other  relating  to  executions  on  judgments 
against  goods  or  personal  estate.  The  act  being  a  remedial 
(*)one,  the  mode  of  discovering  whether  leaseholds  are 
bound  by  the  last  provision,  seems  to  be,  first,  an  inquiry 
whether  purchasejrs  of  leaseholds  were  within  the  mis- 
chief the  Legislature  intended  to  guard  against ;  and  if 
they  were,  then  an  inquiry  w^hether  the  word  "  goods"  is 
sufficiently  comprehensive  to  effectuate  the  intention  of 
(he  act. 


(a)  Sir  Gerard  Fleetwood's  case,  8  Co.  171  ;  and  see  and  consider 
31  Ass.  p.  6  ;  38  Ass.  p.  4  ;  and  see  2  Inst.  395 ;   Gilb.  Ex.  33.  35. 

(b)  Sir  Qerard  Fleetwood's  case,  8  Co.  171  ;  and  see  1  Fitz.  Abr. 
tit.  Execution,  pi.  108;  2  Ro.  Abr.  167;  Wilson  r.  Wormol,  Godb. 
161,  pi.  226  ;   Shirley  v.  Watts,  3  Atk.  200. 

(*200) 


232  ^^  PROTECTION  TROM  JUDGMENTS. 

First,  the  act  was  passed  for  the  quiet  and  in  favor 
of  purchasers  ;  and  admitting  that  leaseholds  were  only 
bound  from  the  award  of  execution,  it  is  evident  that  the 
first  provision  in  the  act  does  not  apply  to  leaseholds  ; 
w^hich  are,  therefore,  clearly  within  the  mischief  intended 
to  be  guarded  against  by  the  second  provision,  as  a  sale 
of  them  is  liable  to  be  overturned  by  a  writ  awarded  in 
vacation,  and  tested  in  the  preceding  term  ;  and  if  we  do 
not  hold  leaseholds  to  be  within  the  operation  of  this 
branch  of  the  act,  purchasers  of  them  are  still  liable  to 
the  danger  which  the  statute  intended  to  guard  them 
against. 

Assuming  that  leaseholds  are  within  the  meaning,  it 
remains  to  inquire  whether  they  are  within  the  words  of 
the  act.  This  depends  upon  the  construction  which  the 
word  "  goods,"  in  the  act,  ought  to  receive. 

Biens,  bona,  Sir  Edward  Coke  says(c),  includes  all 
chattels,  as  well  real  as  personal.  Chattels,  he  adds,  is  a 
'French  word,  and  signifies  goods,  which  by  a  word  of 
art  we  call  catalla.  And  this,  as  Sir  Wm.  Blackstone 
observes(J),  is  true  if  understood  of  the  Norman  dialect 
for  in  the  Grand  Coiistumier(e),  we  find  the  word  chat- 
tels used  and  set  in  opposition  to  a  fief  or  feud,  so  that 
not  only  goods,  but  whatever  was  not  a  feud,  were 
(*)accounted  chattels  ;  and  the  learned  commentator  is  of 
opinion  that  our  law  adopts  it  in  tlip  same  large,  ex- 
tended, negative  sense. 

This  opinion  appears  to  be  correct,  if  confined  to 
the  word  chattels;  but  it  must  not  be  extended  to  the 
word  goods,  which,  in  our  law,  has  a  more  confined 
operation. 

By  the  civil  law,  however,  bona  includes  all  chattels, 
as  well  personal  as  real ;  and  therefore  a  general  bequest 

(c)  Co.  Litt.  118.  b.         {d)  2  Com.  385,  7th  edit.        (c)  C.  87. 
(*201) 


OF  PROTECTION  FROM  JUDGMENTS.  233 

of  all  one's  goods  will  pass  a  leasehold  estate(/),  because 
the  civil  law  guides  the  construction  of  bequests  of  per- 
sonalty ;  but  it  seems  clear,  that  in  an  assignment,  which 
must  be  construed  according  to  the  rules  of  the  common 
law,  a  leasehold  estate  will  not  pass  under  the  word 
goods(l). 

It  appears,  therefore,  that  in  some  cases  that  word 
will  include  leaseholds,  while  in  others  it  will  not  ;  and 
the  true  rule  to  discover  what  sense  was  affixed  to  it  in 
the  statute  of  frauds  seems  to  be,  an  investigation  of  the 
meaning  usually  attached  to  the  same  word  in  acts  of 
parliament  passed  before  that  statute. 

By  the  statute  of  West.  2. (,«-),  it  is  enacted,  that  where, 
(*)upon  the  death  of  any  person  intestate  and  indebted, 
the  goods  (bona)  shall  come  to  the  ordinary,  he  shall  be 
bound  to  pay  the  debts  so  far  as  the  goods  (bona)  will  ex- 
tend, in  the  like  manner  as  executors  would  have  been  if 
he  had  left  a  will.  And  in  the  31st  Edw.  3.(/i),  for  the 
commitment  of  administration,  the  word  goods  (biens) 
only  is  used. 

In  both  these  statutes,  therefore,  the  word  goods  was 
considered    as  denoting  personalty  in   general.     It  may 

(/■)   Poitman  v.  Willis,  Cro.  Eliz.  3S6. 
(g-)   1.3  Ed.  1,  c.  19. 
{h)   Stat.  1,  c.  11. 

(I)  This  was  decided  in  4  Edw.  6  ;  but  in  Portman  v.  Willis,  m5«  sup. 
Gawdy  was  of  opinion,  against  Popham  and  Clench,  that  a  grapt  of 
omnia  bona  mobilia  el  immobilia,  would  pass  leases  for  years  ;  and  so, 
he  said,  would  a  grant  of  omnia  bona  in  general  ;  for  39  H.  6,  35,  was, 
that  a  man  had  rent  for  years,  and  granted  omnia  bona  sua ;  and  it  was 
held  that  this  rent  passed  ;  and  he  vouched  4  Hen.  4,  as  another  autho- 
rity, because  an  executor  shall  have  an  ejeclione  firmce  by  the  equity  of 
the  statute  of  4  Ed.  3,  de  bonis  asporlatis. 

On  examination,  it  appears  that  the   authorities  cited   by  Gawdy  do 

not  apply.     The   grant   was   of  omnia  bona  et  catalla,  tarn  viva  quam 

morlua;  and  in   the  statute   of  4   Edw.  3,  the  words  biens  el  chaletix 

are  used. 

VOL.   II.  30  (*202) 


OQA  OF  PROTECTION  FROM  JUDGMENTS. 

indeed  be  objected,  that  terms  for  years  were  not  then 
much  in  use ;  but  allowing  this,  later  acts  place  the  point 
still  more  out  of  doubt. 

Thus  the  21st  Hen.  8,  c.  5,  after  directing  how 
administration  shall  be  granted  in  certain  cases  of  the 
"  goods"  of  intestates,  contains  a  direction,  that  surety 
shall  be  taken  of  the  administrators  for  the  administra- 
tion of  the  "  goods,  chattels  and  debts,"  which  they 
should  be  authorized  to  minister(i). 

In  this  statute,  the  word  "  goods"  was  used  as  sy- 
nonymous to  "  goods,  chattels  and  debts  ;"  and  the  point 
seems  to  be  placed  beyond  controversy  by  the  same  sense 
being  attached  to  that  word  in  a  statute  passed  but  a  feu- 
years  previously  to  that  upon  which  the  present  question 
arises. 

The  statute  to  which  I  allude  is  the  22d  and  23d  Car.  2, 
c.  10,  which,  after  giving  power  to  commit  administration 
of  the  "  goods"  of  intestates,  directs  bonds  to  be  taken, 
with  a  condition  for  (amongst  other  things)  making  an 
inventory  of  the  "  goods,  chattels  and  credits"  of  the 
deceased  ;  which  words  are  used  througiiout  the  condi- 
tion. In  fact,  the  words  "  goods,"  "  goods,  chattels  and 
credits,"  and  "  estate,"  have  one  and  the  same  meaning 
attached  to  them  throughout  the  statute(A;). 

(*)It  remains  to  remark,  that  Lord  Hardwicke  seems  to 
have  considered  leaseholds  as  within  the  operation  of  the 
16th  section  of  the  statute  of  frauds,  and  consequently  as 
not  bound  until  the  delivery  of  the  writ  of  execution  to 
the  sheriff. 

For  in  Burdon  v.  Kennedy(/),  his  Lordship  said, 
where  an  execution  by  elegit,  or  fieri  facias  is  lodged   in 

(i)  And  see  43  Eliz.  c.  8. 
(k)  And  see  29  Car.  2,  c.  3,  s.  25. 

(/)  3  Atk.  739  ;  and  see  Jeanes  v.  Wilkins,    1  Ves.  195  ;   Foifh  v. 
Duke  of  Norfolk,  4  Madd.  503. 
(*203) 


OF  PROTECTION  PROM  UNREGISTERED  DEEDS,  &c.  ^35 

a  sheriff's  hands,  it  binds  goods  from  that  time,  except  in 
the  case  of  the  Crown,  and  a  leasehold  estate  is  also  affect- 
ed from  thai  time  ;  and  if  the  debtor,  subsequent  to  this, 
makes  an  assignment  of  the  leasehold  estate,  the  judg- 
ment creditor  need  not  bring  a  suit  in  ejectment  to  come 
at  the  leasehold  estate,  by  setting  aside  the  assignment, 
but  may  proceed  at  law  to  sell  the  term,  and  the  vendee, 
who  is  generally  a  friend  to  the  plaintiff,  will  be  entitled 
at  law  to  the  possession,  notwithstanding  such  assign- 
ment(I). 


ill.  There  is  still  another  provision  in  the  act  of 
Charles  2.  in  favor  of  purchasers.  It  is  enacted,  that  the 
day  of  the  month  and  year  of  enrolment  of  recognizances 
shall  be  set  down  in  the  margin  of  the  roll ;  and  that  no 
recognizance  shall  bind  any  lands,  &c.  in  the  hands  of  any 
purchaser,  bona  fide  and  for  valuable  consideration,  but 
from  the  time  of  such  enrolment(m). 


9ei^e 


(*)SECTION    V. 
OJ  Protection  from  unregistered  Deeds,  ^c. 


Bv  several  acts  of  parliament,  all  deeds  and  wills  con- 
cerning estates  within  the  nortli(/i),  east(o),  or  west(p) 
ridings  of  the  county  of  York ;  or  within  the  town  and 

(m)   29  Cha.  2,  c.  3,  s.  18.     (a)   8  Geo.  2,  c.  6. 

(0)  6  Anne,  c.  35.  (p)  2  &  3  Anne,  c.  4  ;  6  Anne,  c.  18. 

(1)  Note,  if  the  judgment-creditor  tamper  with  the  sheriff  to  have 
the  estate  sold  at  an  undervalue,  equity  will  relieve  against  the  sale. 
Gascoign  r.  Stut,    3  Cha.  Rep.  32.     See   Dillon  v.  Byrn,  Irish   Term 

Rep.  600. 

(*204) 


236  ^*'  PROTECTION  FROM 

county  of  Kingston-iipon-Hull(^)  ;  or  within   the  county 
of  Middlesex(r),  are  directed  to  be  registered. 

And  it  is  enacted,  that  all  such  deeds  shall  be  adjudged 
fraudulent  and  void  against  any  subsequent  purchaser,  or 
mortgagee,  for  valuable  consideration,  unless  a  memorial 
thereof  be  registered  in  the  manner  thereby  prescribed, 
before  the  registering  of  the  memorial  of  the  deed  under 
which  such  subsequent  purchaser  or  mortgagee  shall  claim. 

And  that  all  devises  by  will  shall  be  adjudged  fraudu- 
lent and  void  against  subsequent  purchasers  or  mortga- 
gees, unless  a  memorial  of  such  will  be  registered  within 
the  space  of  six  months  after  the  death  of  the  devisor, 
or  testatrix,  dying  within  Great  Britain ;  or  within  the 
space  of  three  years  after  his  or  her  death,  dying  upon  the 
sea,  or  in  parts  beyond  the  seas.  Wills  registered  within 
the  time  allowed  by  the  act  will  prevail  over  even  a  prior 
registered  conveyance  ;  but  no  time  is  limited  by  the  act 
within  which  a  memorial  of  a  will  must  be  registered.  It 
may  therefore  be  registered  at  any  time  \a  here  there  is  no 
adverse  title  under  a  prior  registered  conveyance  ;  and 
there  is  no  weight  in  an  objection  which  has  lately  been 
(*)made,  that  the  estate  descends  to  the  heir  at  law,  if 
the  will  be  not  registered  within  the  periods  above  speci- 
fied. 

This  provision  is  the  same  in  all  the  acts,  but  different 
provisions  are  made  by  the  several  acts  in  the  case  of 
wills  contested  or  suppressed. 

If  the  devisee  of  an  estate  within  any  of  the  three  rid- 
ings of  the  county  of  York,  or  the  town  of  Kingston- 
upon-Hull,  be  disabled  to  exhibit  a  memorial  within  the 
time  limited,  by  the  suppression  of  the  will,  or  other  in- 
evitable difficulty,  then  a  memorial  entered  of  such  im- 
pediment within  six  months  after  the  death  of  such  devi- 
sor or  testatrix,  who  shall  die  within   Great  Britain,  or 


((/)   6  Auno,  c.  35.  (>•)   7  Anne,  c.  20. 


UNREGISTERED  DEEDS,  &c.  237 

within  three  years  after  the  desease  of  such  person  who 
shall  die  upon  the  sea,  or  beyond  the  seas  ;  and  a  memorial 
of  such  will,  also  registered  within  six  months  after  the 
removal  of  such  impediment,  will  protect  the  devisees 
against  any  purchaser  subsequently  to  the  will. 

But  as  to  the  estates  in  the  north  riding  of  York,  it  is 
enacted,  that  in  case  of  the  concealment  or  suppression 
of  any  will  or  devise,  any  purchaser  shall  not  be  disturbed 
or  defeated  in  his  purchase,  unless  the  will  be  actually 
registered  within  three  years  after  the  death  of  the  de- 
visor. 

As  to  estates  in  the  county  of  Middlesex,  it  is  provided, 
that  an  entry  of  the  impediment  within  two  years  after 
the  death  of  any  devisor  or  testatrix  who  shall  die  in 
Great  Britain,  or  within  four  years  after  the  decease  of 
such  person  who  shall  die  upon  the  sea  or  beyond  the 
seas  ;  and  the  registry  of  a  memorial  of  the  will  within 
six  months  after  the  removal  of  the  impediment,  shall  be 
good.  But  no  concealed  will  is  to  affect  a  purchaser, 
unless  it  be  registered  within  five  years  after  the  death 
of  the  testator. 

None  of  the  acts  extend  to  copyhold  estates,  or  to  leases 
at  rack-rents,  or  not  exceeding  twenty-one  years,  where 
(*)the  actual  possession  and  occupation  go  along  with  the 
lease.  And  the  act  for  the  county  of  Middlesex  does  not 
extend  to  any  of  the  chambers  in  Serjeants  Inn,  the  Inns 
of  Court,  or  Inns  of  Chancery. 

And  it  is  by  the  same  acts  further  provided,  that  no 
judgment,  statute  or  recognizance  (other  than  such  as 
shall  be  entered  into  in  the  name  and  upon  the  proper 
account  of  the  king,  his  heirs  and  successors)  shall  bind 
any  such  estates  as  aforesaid,  but  only  from  the  time  that 
a  memorial  thereof  shall  be  duly  entered. 

This  clause  is  general  as  to  estates  in  Middlesex  ;  but 
as  to  estates  in  the  east  and  west  ridings  of  York  and 

(*206) 


23S 


OF  PROTECTION  FROM 


Kingstoii-upon-Hull,  it  is  enacted,  that  the  registry  of 
judgments,  statutes  or  recognizances  within  thirty  days 
after  the  acknowledging  or  signing  thereof,  shall  bind 
all  the  lands  of  the  defendant  at  the  time  of  such  acknow- 
ledgment or  signing  ;  and  the  same  provision  is  made  as 
to  estates  in  the  north  riding  of  York,  only  that  the  time 
is  limited  to  twenty  days. 

In  commenting  on  these  important  acts,  I  propose  to 
consider,  first,  the  memorial  required  by  the  acts ; 
secondly,  what  instruments  must  be  registered  ;  thirdly, 
the  exceptions  in  the  acts  ;  and  fourthly,  the  equitable 
doctrine  on  these  statutes  in  regard  to  notice. 


I.  And  first,  every  memoral  of  a  deed  or  conveyance 
is  directed  by  the  acts  to  be  under  the  hand  and  seal  of 
some  or  one  of  the  grantors  or  grantees,  his  or  their  heirs, 
executors  or  administrators,  guardians  or  trustees,  attest- 
ed by  two  witnesses,  one  whereof  to  be  one  of  the  wit- 
nesses to  the  execution  of  the  deed ;  which  witness  shall, 
upon  his  oath  before  the  registrar,  prove  the  signing  and 
sealing  of  the  memorial  and  the  execution  of  the  deed 
mentioned  in  such  memorial, 

(*)A  line  by  mistake  omitted  in  the  act  for  the  North 
Riding  of  York ;  the  memorial  is  required  to  be  attested 
"  by  two  witnesses  to  the  execution  of  such  deed,  which 
witness"  is  directed  to  prove  the  execution  of  the  memorial 
and  the  deed.  It  is  evident,  that  the  words  in  the  other 
acts  "one  whereof  to  be  one  of  the  witnesses"  are  omit- 
ted after  the  word  "  witnesses,"  and  before  the  words 
"  to  the  execution  of  such  deed."  By  this  act  the  person 
signing  the  memorial  may  acknowledge  it,  and  the  exe- 
cution of  the  deed. 

The  intention  of  the  Legislature  clearly  was,  that  no 
deed  should  be  memorialized,  the  execution  of  which  by 
the  granting  party  was  not  proved  on  oath  by  one  of  the 
witnesses  to  it ;  for  although  the  memorial  may  be  cxe- 

(*207) 


UNREGISTERED  DEEDS,  &c.  239 

cuted  either  by  the  grantor  or  grantee,  yet  one  of  the 
witnesses  to  it  must  be  a  witness  to  the  execution  of  the 
deed,  and  this  must  be  understood  to  mean  not  merely 
the  execution  by  an  unnecessary  party,  as  the  grantee, 
but  the  execution  by  the  party  from  whom  the  estate 
moves. 

It  is  however  observed,  in  the  Observations  on  Regis- 
try(5),  that  if  a  considerable  time  has  elapsed  from  the 
date  of  a  deed  intended  to  be  registered,  and  all  the  wit- 
nesses are  dead,  or  the  testimony  of  any  of  them  not  easily 
obtained,  no  further  delay  need  originate  from  either 
cause  ;  as  the  re-execution  of  such  deed  by  any  one  of  the 
parties  in  the  presence  of  a  new  loitness,  will  be  sufficient 
to  effectuate  the  registry. 

Now  there  seems  great  reason  to  contend,  that  such  a 
memorial  would  be  wholly  inoperative  under  the  register- 
ing acts.  A  witness  to  the  execution  of  a  deed,  which  is 
intended  to  be  registered,  was  required  for  the  purpose  of 
authenticating  the  original  execution  of  it,  and  to  prevent 
(*)forged  deeds  from  being  put  on  the  register(^).  The 
requisition  of  the  act  is  not  even  substantially  complied 
with  by  an  execution,  which  is  totally  inoperative,  and 
whicli,  if  it  had  any  operation,  would  be  a  fraud  upon  the 
revenue. 

It  seems  that  the  direction  in  the  act,  by  which  the 
heirs,  executors  or  administrators,  guardians  or  trustees 
of  some  or  one  of  the  grantors  or  grantees,  are  authorized 
to  execute  the  memorial,  has  been  thought  not  to  convey 
a  very  clear  idea  of  the  manner  in  which  the  registry  by 
such  representative  is  to  be  effected  ;  and  therefore  the 
register  requires  the  instrument  to  be  registered,  to  be 
sealed  and  delivered  by  the  person  requiring  the  registry, 
as  if  he  was  a  party  in  his  own  right(M). 

(s)    Rigge  on  Reg.  p.  76,  n.  (d)  ;   Precedent,  No.  32,  p.  143. 
(0    Sec  Hobhouse  r.  Hamilton,  1  Scho.  &  Lef.  207. 

(")   Rigge,  74,  n.  (b)  ;   Precedent,  No.  31,  p.  142. 

(*208) 


240 


OF  PROTECTION  FROM 


But  it  seems  quite  clear,  that  no  such  execution  is  ne- 
cessary. The  representative  need  execute  the  memorial 
only  in  the  presence  of  two  witnesses,  "  one  whereof  to  be 
one  of  the  witnesses  to  the  execution  of  such  deed  or  con- 
veyance," which  witness  will  then,  according  to  the  very 
words  of  the  act,  prove  the  signing  and  sealing  of  the 
memorial,  and  the  execution  of  the  deed  or  conveyance 
mentioned  in  such  memorial. 

So  it  seems,  that  where  a  lease  or  any  other  deed  is 
from  a  corporation,  who  of  course  affix  merely  a  seal 
without  any  signature,  the  lessee  is  required  to  execute 
the  deed  for  the  conveniency  of  registry(a:)(39]). 

This  practice  is  open  to  the  observation  just  made  ;  for 
it  is  clear,  upon  principle  as  well  as  authority(2/),  that  a 
corporation  affixing  their  seal  is  tantamount  to  a  signing 
and  sealing  by  an  individual.  And  it  is  to  be  observed, 
that  in  this  and  the  preceding  cases  it  is  indispensably 
(*)requisite  that  one  of  the  witnesses  to  the  original  exe- 
cution of  the  instrument  intended  to  be  memorialized 
should  be  a  witness  to  the  memorial. 

It  appears  also,  that  the  registrars  are  in  the  habit  of  re- 
ceiving and  registering  certificates  of  writs  of  execution  (2), 
decrees  or  orders  from  the  courts  of  equity,  or  rules  of  the 
courts  of  law(«),  office  copies  of  wills(6),  and  certificates 
of  the  discharge  of  judgments(c),  none  of  which  are 
authorized  to  be  registered,  or  can  be  legally  received. 
And  it  therefore  seems  clear,  that  the  registry  of  such 
instruments  is  wholly  nugatory,  so  far  as  any  priority  or 

(x)   Rigge,  106,  107.  (a)  Id.    83,  n.  (h). 

iy)  Doe  V.  Hogg,  1  New  Rep.  306.  (6)  Id.  96,  n.  (s). 

{z)  Rigge,  Precedent,  35,  p.  148.  (c)  Rigge,  Precedent,87,  n. 

(391)  See  Jackson  v.  Walsh,  3  Johns.  Rep.  228.  See  ako,  Taft 
V.  Brewster,  9  Johns.  Rep.  334.  Colcock  v.  Garvey,  1  Nott  &  M'Cord, 
231.  Frankfort  Bank  v.  Anderson,  3  Marsh.  Ken.  Rep.  1.  Bank  oj 
Columbia  v.  Patterson^s  Admr.,  7  Cranch,  299,  305. 

(*209) 


UJJREGISTERED  DEEDS,  &c.  211 

effect   is  attempted    to    be  given    to    them  by  force   of 
the  act. 

In  regard  to  the  contents  of  the  memorial — the  anxiety 
of  the  Legislature  not  wantonly  to  compel  the  disclosure 
of  the  concerns  of  individuals,  induced  them  simply  to 
require  that  every  memorial  should  contain,  first,  the  day 
of  the  month  and  year  when  the  deed,  fcc.  bears  date, 
and  the  names  and  additions  of  all  the  parties  to  it,  and 
of  the  devisor  or  testatrix  of  a  will,  and  of  all  the  witnesses 
to  such  deed,  &.c.  and  the  places  of  their  abode ;  and 
secondly,  the  honors,  manors,  lands,  tenements  and  here- 
ditaments contained  in  such  deed,  &c.  and  the  names  of 
the  parishes,  &;c.  where  any  such  estates  lie  that  are  com- 
prised in  or  affected  by  such  deed,  &c.  in  such  manner  as 
the  same  are  expressed  or  mentioned  in  such  deed,  &c.  oc 
to  the  same  effect(r/).  A  memorial,  therefore,  to  the 
following  effect  would  fully  comply  with  the  requisitions 
of  the  act :  "  A  memorial  to  be  enrolled  pursuant  to  act 
of  parliament,  of  an  indenture.  It  bears  date  the  14th 
day  of  June  1806.  It  is  made  between  A.,  of,  &c.  [here 
insert  the  description],  of  the  one  part,  and  B.,  of,  &c. 
(*)[here  insert  the  description],  of  the  other  part.  It  com- 
prises all  that  manor,  &c.  [here  insert  the  parcel ;  the  ge- 
neral words  need  not  be  inserted,  but,  instead  thereof,  say, 
"  with  their  rights,  members  and  appurtenances."]  And 
the  said  indenture,  as  to  the  execution  thereof  by  the 
said  A.  and  B.,  is  witnessed  by  C,  of,  &;c.  [here  insert  his 
description],  and  Z).,  of,  &,c.  [here  insert  his  description]. 
And  the  said  indenture  is  hereby  required  to  be  registered 
by  the  said  B.,  as  witness  his  hand  and  seal  this  14th  day 
of  June  1806.  Signed  and  sealed  in  the  presence  of  C. 
or  D.  [one  of  them  must  attest  the  memorial],  and  E.,  of, 
&c."  It.  seems,  however,  advisable  to  go  a  step  farther, 
and    to  state   to  whom  the  estate  is  conveyed,  as  this, 

(d)  7  Anne,  c.  20,  s.  6. 

VOL.   II.  31  (*210) 


nh0  OF  PROTECTION  FROM 

where  there  are  more  than  two  parties,  will  facilitate 
a  search  for  incumbrances  on  the  estate  ;  but  no  good 
reason  can  be  given  why  the  parties  should  be  put  to  ex- 
pense by  stating  the  instrument  more  fully.  When  a 
purchaser  discovers  what  deeds  were  executed,  he  will  of 
course  require  the  production  of  them  ;  and  so  no  mischief 
can  arise  by  a  strict  adherence  to  the  letter  of  the  act. 

With  respect  to  the  parcels  it  is  provided,  that  where 
there  are  more  writings  than  one  for  making  or  perfecting 
any  conveyance  or  security  which  concerns  the  same  es- 
tates, it  shall  be  a  sufficient  memorial  thereof,  if  all  the 
estates  are  only  once  named  in  the  memorial  of  any  one 
of  the  deeds  or  writings,  and  the  dates  of  the  rest  of  the 
deeds  or  writings,  witli  the  names  and  additions  of  the 
parties  and  witnesses,  and  the  places  of  their  abodes,  are 
only  set  down  in  the  memorials  of  the  same,  with  a  refer- 
ence to  the  deed  or  writing  whereof  the  memorial  is  so 
registered,  that  contains  the  parcels  mentioned  in  all  the 
deeds,  and  directions  how  to  find  the  registering  of  the 
same(e). 

This  provision  has  been  extended  in  practice.  It  is 
(*)usual,  for  instance,  in  a  memorial  of  an  assignment  of 
a  lease,  to  refer  for  the  parcels  to  the  prior  registry  of  the 
lease,  although  a  separate  and  distinct  transaction.  This, 
however,  is  very  incorrect.  The  statute  only  au^ihorizes 
such  a  reference  where  several  writings  are  executed  to 
perfect  the  name  conveyance  or  security.  And  where  the 
memorial  does  not  comply  Avith  the  directions  of  the  act, 
the  person  claiming  under  the  deed  defectively  registered 
cannot  insist  on  the  benefit  of  the  statute  against  a  subse- 
quent purchaser  without  notice,  whose  conveyance  is  duly 
registered. 


II.  We  are  to  consider  what  deeds  ought  to  be  regis- 


(e)  7  Anne,  c.  20,  s.  7. 
(*211) 


UNREGISTERED  DEEDS,  &c.  ^A^Z 

lered.  It  is  not  easy  to  conceive  thaft  any  doubt  could 
arise  on  this  head ;  but,  nevertheless,  two  questions  have 
been  agitated. 

First,  it  has  been  contended,  that  a  deed  of  appoint- 
ment under  a  power  need  not  be  registered  ;  because 
upon  the  execution  of  a  power  the  interest  limited  by  it 
arises  under  the  deed  creating  the  power.  But  to  this 
it  was  answered,  that  the  deed  was  within  the  mischief 
intended  to  be  guarded  against  by  the  act,  as  a  purchaser 
could  not  otherwise  discover  whether  the  power  was  ex- 
ercised ;  and  it  was  accordingly  decreed,  that  deeds  of 
appointment  must  be  registered(y^. 

The  other  question  was,  whether  the  non-registry  of  a 
lease  was  cured  by  registering  an  assignment  in  which  the 
lease  was  recited  ;  and  it  was  very  properly  decided,  that 
It  was  not(g)(392)  ;  for  the  intention  of  the  Legislature 
was,  that  the  register  should  contain  such  information  as 
might  enable  purchasers  to  ascertain  whether  estates  were 
or  were  not  subject  to  incumbrances  ;  for  which  purpose 
it  is  necessary,  that  the  register  should  contain  a  regular 
(*)chain  of  title.  If  one  link  is  broken,  the  object  of  the 
Legislature  is  defeated. 

In  Warburton  v.  Loveland(/i),  which  depended  upon 
the  Irish  act,  a  new  question  arose.  An  unmarried 
woman  being  possessed  of  land  in  Ireland  for  a  long  term 
of  years,  and  about  to  marry,  assigned  the  term  by  a 
deed,  executed  also  by  the  intended  husband,  to  trustees, 
upon  trust  to  permit  the  husband,  after  marriage,  to  re- 
ceive the  rents   for   life  ;   then   the  wife  for   life,  then  the 

(/)    Scraflon  v.  Quincey,  2  Tcs.  413. 
(o-)   Honeycomb  v.  Waldron,  2  Str.  1064. 

(h)  2   Dow  &  Clark,   480-     The  observations  of  the  Judges  are  so 
important,  that  they  are  stated  at  some  length. 

(392)   See  Jackson  v.  JVcc/i/,  10  Johns.  Rep.  376.     Carrey's  Les.  v. 

Caxton,  i  Binn.  140. 

(•*212) 


OF  PROTECTION   FROM 


244 

first  son  of  the  marriage,  if  any,  with  remainder  over. 
The  marriage  took  effect ;  the  husband  entered  into  pos- 
session, and  received  the  rents  and  profits,  and  then  made 
a  lease  for  years  for  part  of  the  term,  rendering  rent ;  the 
lessees  entered  and  received  the  rents  and  profits,  and 
then  assigned  the  lease  for  a  valuable  consideration. 
The  marriage  settlement  was  not  registered  ;  the  lease 
by  the  husband  was  registered  ;  the  assignment  of  the 
lease  was  supposed  not  to  have  been  registered.  The 
wife,  surviving  her  husband,  obtain  edpossession  of  the 
lands  ;  the  assignees  of  the  lease  brought  an  ejectment 
against  her  to  recover  the  possession. 

The  questions  were,  1st,  which  title  is  to  be  preferred, 
that  of  the  assignees  of  the  lease,  or  of  the  uidow,  or  the 
trustees  under  the  settlement  ? 

2d.  Supposing  the  assignment  of  the  lease  not  to  have 
been  registered,  will  the  construction  be  the  same  ? 

Upon  the  first  of  these  questions,  the  Judges  who  were 
summoned  were  of  opinion  that,  regard  being  had  to  the 
true  construction  of  the  Irish  Register  Act,  the  title  of 
the  assignees  of  the  lease,  under  the  circumstances  above 
stated,  is  to  be  preferred  to  that  of  the  widow,  and  also 
to  that  of  the  trustees  under  the  settlement ;  and  upon 
the  second  question,  they  were  of  opinion,  that,  supposing 
(*)the  assignment  of  the  lease  not  to  have  been  register- 
ed, the  construction  of  the  statute  remained  the  same,  and 
the  House  of  Loi-ds  decided  accordingly.  In  deliver- 
ing the  opinion  of  the  Judges,  Tindall,  C.  J.,  observed, 
upon  the  facts  of  this  case,  Mr.  Warburton,  who  granted 
the  lease  of  1800,  was  at  the  time  of  granting  it  in 
possession  of  the  premises;  and  as  the  marriage  settle- 
ment of  1779  was  never  put  upon  the  register,  he  must 
have  appeared  to  the  public,  and  amongst  the  rest,  to  the 
lessees  taking  under  the  lease  of  1800,  to  be  in  posses- 
sion of  the  premises  either  in  his  own  right  or  in  right 
of  his  wife,  in  either  of  which  cases  he  would  have  had 

(*213) 


UNREGISTERED  DEEDS,  &c.  245 

the  undoubted  right  to  grant  a  valid   term  by  the  lease  of 
1800,  unless  the  unregistered  settlement  of  1779  stood 
in  the  way.     Now,  it  was  not  disputed  on  the  part  of  the 
plaintiff  in  error,  that  if  Mr.  Warburton  had   been   the 
party  who  conveyed  the  term  by  the  unregistered  settlement 
of  1779,  and   had   afterwards   made  the  lease  which  was 
registered,   such   lessees,  being   purchasers  for  a  valuable 
consideration,  might  have  availed  themselves  of  the  fifth 
section  of  the   registry  act,  and   that  the  prior  settlement 
€ou]d  have  been  held  fraudulent  and  void  as  against  the 
lease.     Such  a  case  was  admitted  to  fall  within  the  letter 
as  well  as  the   spirit  of  the  act.     But  it  was  contended 
by  the  plaintiff  in  error,  that   the   operation   of  the   Irish 
Registry  Act    extended   no   further,  but  was.  confined   to 
cases  in  which  both   the  earlier  and   the  subsequent  con- 
veyances are  the  deeds  of  the  same  grantor  ;  and  whether 
such  was  the  case,  or,  on  the  contrary,  the  act  extended  to 
give  a  preference  to  the  subsequent  deed  when  registered 
against  the  prior   unregistered   deed,  notwithstanding  the 
same  was  executed  by  a  former  owner  of  the  estate,  was, 
in   substance,  the  question  now  proposed  for  considera- 
tion.    No  case  could   be  found  either  upon  the   English 
registry  acts  or   upon   the   Irish  act,  in  which  this  precise 
(*)question  had  been  decided  by  a  court  of  law.     It  must, 
therefore,  be  determined  upon  principle,  not  upon  autho- 
rity ;  and  the  only  principle  of  decision  that  was  applica- 
ble to  it,  was  the  fair  construction  of  the  statute  itself, 
to  be  made   out   by  a  careful  examination  of  the  terms  in 
which  it  was  framed,   and   by  a  reference   in  all  cases 
where  a  doubt  arises  to  the  object  which  the  Legislature 
had  in  view  when   the  statute  was  passed.     Where   the 
language  of  the  act  was  clear  and  explicit,  they  must  give 
effect  to  it,  whatever  might  be  the  consequences ;  for  in 
that  case  the  words  of  the  statute  spoke  the  intention   of 
the  Legislature.     If  in  any  case  a  doubt  arose  upon  the 
words  themselves,  the  Judges  must  endeavor  to  solve  that 


246 


OF  PROTECTION  FROM 


doubt,  by  discovering  the  object  which  the  Legislature 
intended  to  accomplish  by  passing  the  act.  After  exam- 
ining the  provisions  of  the  act,  the  learned  Judge  conclud- 
ed that  the  statute  meant  to  afford  an  effectual  remedy 
against  the  mischief  arising  to  purchasers  for  a  valuable 
consideration,  from  the  subsequent  discovery  of  secret  or 
concealed  conveyances,  or  secret  or  concealed  charges 
upon  the  estate.  Now,  it  was  obvious  that  no  more 
effectual  remedy  could  be  devised  than  by  requiring  that 
every  deed  by  which  any  interests  in  lands  or  tenements 
was  transferred,  or  any  charge  created  thereon,  should  be 
put  upon  the  register  under  the  peril,  that  if  it  was  not 
found  thereon,  the  subsequent  purchaser  for  a  valuable 
consideration,  and  without  notice,  should  gain  the  priority 
over  the  former  conveyance  by  the  earlier  registration  of 
his  subsequent  deed. 

The  miscliief  to  the  purchasers  was  the  same  whether 
the  secret  conveyance  or  charge  arose  from  the  deed  of 
his  immediate  grantor,  or  that  of  a  former  owner  of  the 
estate.  If  the  words  of  the  statute  will  comprehend 
both,  why  was  he  to  be  protected  against  a  secret  deed 
in  the  one  case,  and  not  in  the  other?  What  just  ground 
(*)of  complaint  could  be  urged  against  such  a  construction 
by  the  grantee  under  the  unregistered  deed  executed  by 
a  former  owner  of  the  estate  ?  The  deed,  if  it  was  a  real 
and  a  bona  fide  transaction,  must  have  been,  or  ought  to 
have  been,  in  his  custody  or  power  from  the  time  of  its 
delivery.  What  cause  could  be  assigned  for  its  non- 
appearance upon  the  register,  except  either  collusion 
with  the  grantor,  or  carelessness  and  neglect  in  himself, 
or  mere  accident  ?  In  neither  case  would  he  complain  of 
the  construction  of  the  statute  by  which  his  own  fraud, 
or  his  own  w^ant  of  due  caution,  or  an  accident  which 
befel  himself,  was  not  allowed  to  operate  to  the  prejudice 
of  the  rights  of  the  more  diligent  purchaser.  Suppose 
a '  man  to    settle  his    property  upon  his  youngest  son's 

f^215) 


UNREGISTERED  DEEDS,  &c.  247 

marriage,  on  himself  for  life,  remainder  to  his  eldest 
son  for  life,  remainder  to  the  younger  son,  his  wife  and 
children,  in  strict  settlement ;  remainder  over  in  fee  ;  the 
settlement  is  not  registered,  and  the  settler  dies,  his 
eldest  son  enters,  and  supposing  himself  to  have  the  fee 
conveys  to  a  purchaser  for  a  valuable  consideration, 
shall  it  be  allowed  that  the  younger  son,  his  widow  or 
his  children,  shall  enter  and  evict  the  purchaser?  Or 
suppose  a  like  settlement  and  a  like  concealment,  and 
the  father  devises  all  his  lands  in  trust  to  sell,  and  to 
apply  the  money  to  debts  and  portions,  or  other  pur- 
poses :  after  the  estate  is  sold,  and  the  money  distributed, 
can  the  construction  of  this  act  be  such  that  the  pur- 
chaser shall  be  turned  out  by  the  claimants  under  this 
settlement  ?  Or,  in  the  particular  case  then  before  them, 
where  Mrs.  Warburton  before  her  marriage  might  have 
registered  the  deed,  and  the  trustees  after  the  marriage 
were  bound  in  duty  to  do  so  if  the  settlement  came  to 
their  knowledge,  could  the  proper  construction  of  the 
act  allow  Mrs.  Warburton  to  avail  herself  of  her  own 
carelessness  or  of  the  breach  of  duty  of  her  trustees,  by 
(*)establishing  her  unregistered  deed  against  a  registered 
lease  made  by  her  husband,  upon  no  other  ground  than 
that  the  settlement  and  the  lease  were  not  conveyances 
by  the  same  person  ?  If  there  was  no  provision  in  the 
act  to  prevent  this  inconvenience,  it  must  be  submitted 
to  through  necessity ;  but  if  there  were  words  in  the 
act  capable  of  such  an  interpretation  as  would  prevent 
the  inconvenience,  they  thought  themselves  bound  upon 
every  consideration  to  give  them  such  an  effect.  How 
much  more  then  where  the  words  themselves  and  their 
strict  grammatical  construction  appeared  to  require  such 
a  sense  ?  That  in  all  the  cases  above  supposed  a  great 
injustice  would  be  worked  if  the  act  supplied  no  remedy, 
no  one  can  deny  ;  to  allow  the  act  to  authorize  such 
mischief,   would    not    only  be    injustice,  but  would    be 

(*216) 


248  ^^  PROTECTION  FROM 

against  law.  The  language  of  the  act  throughout,  seemed 
to  establish  this  to  have  been  its  leading  object,  that  as 
far  as  deeds  were  concerned  the  register  should  give 
complete  information,  and  that  any  necessity  of  looking 
further  for  deeds  than  into  the  register  itself  should  be 
superseded  ;  and  it  was  manifest  that  no  construction  of 
the  act  was  so  well  calculated  to  carry  into  effect  this 
its  avowed  object  as  that  which  forced  all  transfers  and 
dispositions  of  every  kind,  and  by  whomsoever  made,  to 
be  put  upon  the  face  of  the  register  so  as  to  be  open  to 
the  inspection  of  all  parties  who  might  at  any  time  claim 
an  interest  therein. 

It  had  been  further  argued  that  the  effect  of  the 
marriage  settlement  was  to  prevent  the  husband  from 
having  any  right  to  grant  the  lease  of  1800  at  the  time 
it  was  made,  for  that  the  wife's  right  was  effectually 
conveyed  as  between  her  husband  and  herself  by  the 
deed  of  1779;  that  she  had  no  interest  in  her  at  the 
time  she  married  ;  that  she  could  therefore  pass  no  in- 
terest to  her  husband  by  the  marriage ;  that  the  husband 
(*)consequently  never  had  any  right,  and  therefore  could 
convey  none  to  the  lessee.  Now,  it  might  be  admitted 
that  as  against  the  husband,  who  was  party  to  the  deed 
of  1779,  that  deed  was  valid;  it  might  be  admitted  also 
that  he  could  not  of  right  exercise  any  power  over  the 
property  inconsistent  with  that  deed ;  but  as  by  the  non- 
registration of  that  deed  the  grantees  suffered  him,  as 
to  the  world  at  large,  to  have  the  appearance  of  right, 
neither  they,  nor  any  claiming  under  them,  were  at 
liberty  to  set  up  the  deed  in  opposition  to  the  persons 
who  had  been  deluded  by  the  appearance  of  right  in 
the  husband.  This  argument,  therefore,  which  would  be 
good  against  the  husband  himself,  could  not  be  heard 
from  the  parties  claiming  under  the  settlement  against 
his  grantee  for  a  valuable  consideration. 

(*217) 


^ 


UNREGISTERED  DEEDS,  &c.  249 

III.   We  come  to  the  exceptions  in  the  acts. 
The   first   exception  is  of  copjiiold  estates.     This  ex- 
ception is  general ;  and  it  may  be   thought   that  no  deed 
relating    to    a  copyhold  estate  need   be  registered.     No 
effectual  lien  can    be  created   on  the  land  without  its  ap- 
pearing on  the  court-rolls.     A  lease,  indeed,  once  created 
by  license  is  a  common-law  interest,  and  may  be  assigned 
'    without    the  assignment  appearing  in  the  court  books  ; 
but   this  is  a  very  inconsiderable  mischief,  as   the   license 
must  appear  on  the   court-rolls.     Indeed,   in  some   few 
manors,  copyhold   tenants  may  lease  without  license,  and 
;    this  is  a  good   custom.     But  still    in  all   cases,  although 
'    the  interest  granted  by  the  lease  is  a  common-law  interest, 
yet  the  estate  remains  copyhold,  and  appears  to  be  within 
the   exception   in   the  act.     However,  it  is  certainly  ad- 
visable to  register   such  leases  of  copyhold   estates  as,  if 
the  estate  were  freehold,  would  require  registry. 

(*)The  next  exception  is  of  leases  at  rack-rent.  It  fre- 
quently happens,  that  a  lease  originally  at  rack-rent  be- 
comes of  some  value  in  the  course  of  a  few  years.  When 
the  lease  is  sold  for  a  valuable  consideration,  the  question 
arises,  whether  it  continues  within  the  exception,  or  ought 
to  be  registered (?').  On  the  one  side  it  may  be  urged, 
that  the  property  being  valuable,  the  lease  is  within  the 
spirit  of  the  statutes,  as  a  purchaser  of  it  might  otherwise 
be  defeated  by  a  prior  secret  assignment.  But,  on  the 
other  hand,  it  may  be  said,  that  the  next  exception  shows 
the  Legislature  did  not  intend  every  species  of  property 
to  be  subject  to  the  acts,  although  it  may  be  a  saleable 
interest.  And  it  may  be  insisted,  that  the  lease,  at  the 
time  it  was  granted,  having  been  within  the  exception, 
cannot  be  effected  by  any  matter  ex  post  facto,  for  then 
one  day -it  may  be  within  the  exception,  and  another  it 
may  be  subject   to   the   directions  of  the  act,  just  as  the 

(t)   See  Rigge,  88,  n.  (n). 
VOL.   Ti.  32  (*218) 


2  en  OF  PROTECTION  FROM 

property  may  rise  or  fall  in  value.  Perhaps,  therefore, 
the  better  opinion  is,  that  a  lease  priginally  at  rack-rent, 
and  within  the  exception  in  the  acts,  continues  so  during 
the  term,  although  it  may  become  a  valuable  and  saleable 
interest. 

The  next  exception  is  of  leases  not  exceeding  twenty- 
one  years,  where  the  actual  possession  and  occupation  go 
alonff  with  the  lease.  And  it  has  been  said,  that  wiiere 
such  a  lease  becomes  assigned  for  a  valuable  considera- 
tion, its  registry  ought  always  to  be  recommended,  and 
particularly  when  such  assignment  is  by  way  of  mortgage, 
for  then  it  is  clearly  out  of  the  exemption,  the  possession 
and  occupation  (mentioned  conjunctively)  being  di- 
vided(y).  The  latter  part  of  this  observation  is  correct; 
and  it  is  always  usual  in  practice  to  require  a  beneficial 
(*)lease,  not  exceeding  twenty-one  years,  to  be  registered 
where  it  is  assigned  by  way  of  mortgage.  And,  indeed, 
the  acts  seem  cautiously  worded,  so  as  not  to  exempt  the 
lease  in  that  event.  But  it  is  impossible  to  contend,  that 
the  assignment  of  the  lease  for  a  valuable  consideration 
can  take  it  out  of  the  exception.  It  still  remains  clearly 
within,  as  well  the  spirit  as  the  words  of  the  exception. 
While  the  possession  and  occupation  go  along  with  the 
lease  no  one  can  be  deceived,  and  the  lease  still  continues 
"  a  lease  not  exceeding  twenty-one  years,  where  the  pos- 
session and  occupation  go  along  with  the  lease." 

The  last  exception  requiring  notice  is  of  the  ciiambers 
in  Serjeants  Inn,  which  is  certainly  within  the  city  ;  and 
it  therefore  seems  to  have  been  doubted,  whether  the 
Legislature  did  not  intend  the  act  of  7  Anne  to  include  in 
its  operation  the  whole  metropolis,  except  the  borough  of 
Southwark(A;).  But  there  is  not  the  least  ground  for  this 
doubt.  It  is  not  surprising  that  the  mistake  should  have 
been  made,  and   it  is  impossible   to  nrgue,  that   such  an 

U)  lb.  88,  n.  (o).  {Ic)  Rigge,  SS,  n.  (p). 

(*219) 


UNREGISTERED  D£EDS,  &c.  oti 

error  shall  make  an  act  passed  relating  to  lands  "  in  the 
county  of  Middlesex,"  upon  the  petition  of  the  "justices 
of  the  peace,  and  grand  jury  of  the  county  of  Middlesex," 
extend  to  the  city  of  London.  This  construction  would 
invalidate  some  thousands  of  leases,  as  the  general  opin- 
ion of  the  Profession  is,  that  the  act  does  not  extend  to 
the  city. 

IV.  The  fourth  division  of  this  subject  remains  to  be 
discussed.  The  questions  on  this  head  are  simply  three, 
viz. 

First,  Whether  a  person  having  the  legal  estate,  as  a 
mortgagee,  and  advancing  more  money  without  notice  of 
a  second  mortgage  duly  registered,  shall  hold  against  the 
second  mortgage  till  he  is  satisfied  all  the  money  he 
(*)has  advanced  ?  And  it  hath  been  adjudged  that  he 
shall(/)(I)(394). 

The  decision  was  made  upon  this  ground  :  that  though 
the  statute  avoids  deeds  not  registered,  as  against  pur- 
chasers, yet  it  gives  no  greater  efficacy  to  deeds  that  are 
registered  than  they  had  before  ;  and  the  constant  rule  of 
equity  is,  that  if  a  first  mortgagee  lends  a  further  sum  of 
money  without  notice  of  the  second   mortgage,  his  whole 

(i)   Bedford  r.  Backhouse,   2  Eq.   Ca.   Abr.   615,  |>I.  12;  2   Kel.  in 
(.'ha.  5  ;   Wrightson  r.  Hudson,  2  Eq.  Ca.  Abr.  609,  pi.  7. 


(I)  Lord  Redesdale  has  determined  differently  on  the  Irish  register- 
ing act,  because  the  act  declares  that  every  deed  shall  be  effectual 
according  to  the  priorilu  of  (he  lime  of  registry.  There  appears  to  have 
been  cout-iderable  dilliculty  in  the  way  of  this  decision.  Bushell  v. 
Bushel!,  Latouche  r.  Lord  Dunsany,  1  Scho.  &  Lef.  90.  137. 


(394)  See  Berry  v.  J[Iutuallns.  Co.  2  Johns.  Ch.  Rep.  603.  John- 
son v.  Stagg,  2  Johns.  Rep.  510.  Evans  v.  Jones,  1  Yeates,  174.; 
and  see  Shirras  v.  Caig,  7  Cranch,  34,  50.  Colquhoun  v.  Atkinsons,  6 
Munf.  650.  ^  Huges  v.  Worley,  1  Bibb,  290.  Hendricks  v.  Robinson, 
2  Johns  Ch.  Rep.  309.  Brinkerlwffv.  »'\/arf  m,  6  Johns.  Ch.  Rep. 
326.  Jarvis  v.  Rogers,  15  Mass.  Rep.  389,  397.  James  v.  John- 
son, 6  JoJins.  Ch.  Rep.  428.  ct  scq. 

(^220) 


252 


OF  PROTECTION  FROM 


money  shall  be  paid  in  the  first  place.  By  the  establish- 
ment of  the  register,  the  second  mortgagee  has  the  best 
possible  means  of  discovering  whether  the  estate  is  in- 
cumbered, and  who  the  incumbrancer  is  ;  and  if  he  has 
not  searched  the  register,  or,  having  searched  the  regis- 
ter, has  neglected,  in.  compliance  with  the  .general  rule 
of  equity  to  give  the  prior  incumbrancer  notice  of  the 
second  mortgage,  he  is  not  considered  a  proper  object  for 
the  extraordinary  protection  of  a  court  of  equity  ;  for 
even  the  rule  of  law  is  vigilantibus  non  dormientibus  ser- 
vat  lex. 

This  principle  extends  to  a  mortgagor  paying  off  mort- 
gage-money to  a  mortgagee,  without  notice  of  his  hav- 
ing transferred  the  mortgage,  which  is  a  valid  payment, 
although  the  transfer  of  the  mortgage  is  duly  register- 
ed(m)(395). 

And  it  is  conceived,  that  the  rule  would  apply  to  a 
mortgagee  lending  a  further  sum  of  money  to  the  mortga- 
gor, without  notice  of  the  sale  of  the  equity  of  redemption  ; 
and  therefore  a  purchaser  of  an  equity  of  redemption 
(*)of  an  estate  should,  immediately  after  the  sale,  give  no- 
tice of  it  to  the  mortgagee,  although  the  estate  is  in  a  re- 
gister county,  and  his  conveyance  is  duly  registered.  In- 
deed a  purchase  of  an  equity  of  redemption  should  never 
be  completed  without  the  concurrence  of  the  mortgagee, 
for  if  the  mortgagee  have  another  mortgage  made  to  him 
by  the  seller,  although  of  a  distinct  estate  for  a  distinct 
debt,  yet  the  purchaser  of  one  estate  cannot  redeem  one 
mortgage  w^ithout  redeeming  the  other(/i)(396). 

And  here  it  may  be  remarked,  that  an  assignment 
should   not  in  any  case   be  taken  of  a   mortgage  vt'ithout 

(m)   Williams  v.  Sorrell,  4  Ves.  jun.  389. 
{n)   Ireson  v.  Denn,  2  Cox,  425. 

(395)  See  James  v.  Johnson,  6  Johns.  Ch.  Rep.  417. 

(396)  See  Phdps  v.  Ellsivorth,  3  Day,  397,  401. 
(*221) 


UNREGISTERED  DEEDS,  &c.  253 

the  privity  of  the  mortgagor  as  to  the  sum  really  due ; 
for  although  it  undoubtedly  is  not  necessary  to  give 
notice  to  the  mortgagor  that  the  mortgage  has  been  as- 
signed(o),  yet  the  assignee  takes  subject  to  the  account 
between  the  mortgagor  and  mortgagee,  although  no 
receipt  be  endorsed  on  the  mortgage-deed  for  any  part 
of  the  mortgage-money  which  has  been  actually  paid 
off(p)(397). 


The  second  question  is,  Whether  a  person  purchasing 
without  notice,  and  obtaining  the  legal  estate,  shall  be 
prejudiced  by  a  prior  equitable  incumbrance,  which  was 
duly  registered  previously  to  his  purchase  ?  It  was  de- 
cided by  Lord  Camden,  in  the  case  of  Morecock  v. 
Dickens(9'),  that  he  shall  not(398)  ;  and  Lord  Redesdale 
has  expressed  his  opinion  to  be,  that  the  registry  of  an 
equitable  incumbrance  is  not  notice  to  any  subsequeiit  pur- 
chaser. His  Lordship  admitted,  that  if  a  man  searches 
the  register,  he  will  be  deemed  to  have  notice,  and  that 
no  person  thinks  of  purchasing  an  estate  without  search- 
ing the  registry  ;  but  he  thought  it  could  not  be  consi- 
dered (*)as  notice  to  all  intents,  on  account  of  the  mis^chiefs 
that  would  arise  from  such  a  decision.  For  if  it  is  taken 
as  constructive  notice,  it  must  be  taken  as  notice  of  every 
thing  that  is  contained  in  the  memorial :  if  the  memorial 
contains  a  recital  of  another  instrument,  it  is  notice  of  that 
instrument ;  if  a  fact,  it  is  notice  of  that  fact(r).  So,  if 
it  be  notice,  it  must  be  notice  whether  the  deed  be  duly 

(o)   See  9  Ves.  jun.  410. 

(p)  Matthews  v.  Wallvvyn,  4  Ves.  jun.  118.     See  9  Ves.  jun.  264. 
(g)  Ambl.  678. 

(r)  Bushell  v.  Bushell,   1    Scho.  &  Lef.  103  ;  and  see   Pentland  v. 
Stokes,^  2  Ball  &  Beatty,  68. 


(397)  See  Clule  v.    Robison,  on  appeal,  2  Johns.  Rep.  595,  612. 

(398)  See   Parkisl  v.   .^lexauder,  1  Johns.  Ch.  Rep.  398,  399,  400. 

(*222) 


254  ^^  PROTECTION  FROM 

registered  or  not ;  it  may  be  unduly  registered,  and  if  it 
be  SO,  the  act  does  not  give  it  a  preference  ;  and  thus  tlus 
construction  would  avoid  all  the  provisions  in  the  act  for 
complying  with  its  requisites(5)(399). 


The  third  and  last  question  is,  Whether  a  person  buy- 
ing an  estate  with  notice  of  a  prior  incumbrance  not 
registered  shall  in  equity  be  bound  by  such  incumbrance, 
although  he  hath  at  law  obtained  a  priority  by  regis- 
tering his  deed  ?  And  it  hath  been  holden  that  he 
shall(0(400). 

This  decision  is  consistent  with  the  general  principles 
of  equity.  The  intention  of  the  act  was  to  secure  sub- 
sequent purchasers  and  mortgagees  against  prior  secret 
conveyances  and  fraudulent  incumbrances ;  and,  therefore, 

(s)  Latouche  v.  Lord  Dunsany,  1  Scho.  &  Lef.  157  ;  and  see  Un- 
derwood V.  Lord  Courtown,  2  Scho,  &  Lef.  64. 

(/)  Lord  Forbes  v.  Deniston,  4  Bro.  P.  C.  189  ;  2  Eq.  Ca.  Abr. 
482,  pi.  19;  3  Atk.  653,  cited  ;  Chi  vail  v.  NichoUs,  Str.  664  ;  Beat- 
nifl'r.  Smith,  1  Eq.  Ca.  Abr.  357,  pi.  11  ;  Blades  v.  Blades,  1  Eq.  Ca. 
Abr.  358,  pi.  12  ;  Hine  v.  Dodd,  2  Atk.  275 ;  Le  Neve  v.  he  Neve,  3 
Atk.  646  ;  Sheldon  v.  Cox,  Anibl.  624  ;  and  Jolland  v.  Stainbridge,  3 
Yes.  jun.  478;  and  see  Cowp.  712;  1  Burr.  474  ^  1  Scho.  &  Lef. 
Rep.  102  ;  Biddulph  v.  St.  John,  2  Scho.  &  Lef.  521  ;  Eyre  v.  Dol- 
phin, 2  Ball  &  Beat.  290. 

(399)  See  Heister^s  Les.  v.  Foriney,  2  Binn.  40,  44.  Hodgson  v. 
Bulls,  3  Cranch,  165.  Shnon^s  Les.  v.  Brown,  3  Yeates,  187. 
Moore's  Exr.  v.  The  Auditor,  3  Hen.  &  Munf.  232.  Frost  v.  Beck- 
man,  1  Johns.  Rep.  288,*  300. 

(400)  See  Berrij  v.  Mutual  Ins.  Co.,  2  Johns.  Ch.  Rep.  603,  607, 
et  seq.  Jackson  v.  Sharp,  9  Johns.  Rep.  162,  168.  Jackson  v.  Burgotl, 
10  Johns.  Rep.  457,  460,  et  seq.  Lambert  v.  JVancy,  2  Munf.  196. 
Blair  \.  Owles,  1  Munf.  38.  Hoover  v.  Donalhj,  3  Hen.  &  Munf.  316. 
Roberts  v.  Staunton,  2  Munf.  129,  136.  Farnsworth  v.  Childs,  4 
Mass.  Rep.  637,  639.  Marshall  v.  Fisk,  6  Mass.  Rep.  24,  30. 
Stroud  V.  Lockart,  4  Dall.  153.  Henry's  Les.  v.  Morgan,  2  Binn. 
497,  501.  Dey  v.  Dunham,  2  Johns.  Ch.  Rep.  182.  S.  C.  on  aooeal, 
15  Johns.  Rep.  556. 


UNREGISTERED  DEEDS,  &r.  255 

where  a  person  has  notice  of  a  prior  conveyance,  it  is  not 
a  secret  conveyance  by  which  he  can  be  prejudiced  ;  for 
he  can  be  in  no  danger  where  he  knows  of  another  in- 
cumbrance ;  (*)because  he  might  then  have  stopped  his 
liand  from  proceeding,  and  therefore  is  not  a  person  whom 
the  statutes  meant  to  veYw.xe(ii) (4>Ql).  But  of  course 
notice  of  a  prior  unregistered  instrument  is  unimportant 
at  law.  The  first  registered  instrument  must  prevail  at 
law(a-)(402). 

It  will  occur  to  the  learned  reader,  that  although  the 
prior  purchaser  would,  in  a  case  of  this  nature,  be  re- 
lieved against  the  subsequent  sale,  yet  tiie  legal  estate 
will  be  vested  in  the  subsequent  purchaser  by  force  of 
the  statute. 

From  the  foregoing  decisions,  it  is  evident  that  a  pur- 
chaser may  be  bound  by  a  judgment(?/)  or  a  deed, 
although  not  registered  ;  but  it  is  equally  clear,  that  it 
must  be  satisfactorily  proved  that  the  person  who  registers 
the  subsequent  deed  must  have  known  exactly  the  situa- 
tions of  the  persons  having  the  prior  deed  ;  and  knowing 
that  registered,  in  order  to  defraud  them  of  that  title  he 
knew  at  the  time  was  in  them(2)(403).     Apparent  fraud, 

(«)  Le  Neve,  3  Atk.  64C. 

(x)  Tunstall  V.  Trappes,  3  Sim.  301. 

{y)  Doe  V.  Allsop,  5  Barn.  ik.  Aid.  142. 

(2)  See  3  Yes.  jun.  485. 

(401)  See  Frost  v.  Beekman,  1  Johns.  Ch.  Rep.  288,  301. 

(402)  Roberts  v.  Stanton,  2  Munf.  129.  Jackson  v.  Burgotl, 'iO 
Johns.  Rep.  457,  462.  Jackson  v.  Hubbard,  1  Caines'  Rep.  82. 
Jackson  V.  Given,  S  Johns.  Rep.  105,  2d  edit. 

(403)  See  JS^orcross  v.  Widgenj,  2  Mass.  Rep.  506. 

"  A  person  who  takes  a  conveyance  of  land,  with  the  knowledge  that 
the  grantor  had  previously  conveyed  it  to  another,  cannot  hold  it  against 
the  first  purchaser,  even  though  the  first  conveyance  is  not  recorded. 
It  would  l;e  fi-audulent  in  him  to  attempt  thus  to  deprive  the  purchaser 
of  the  fruits  of  his  contract.  If  the  grantor  can  be  considered  as  hav- 
ing any  title  or  estate  after  the  first  conveyance,  it  is  merely  the  legal 

(*223) 


256  ^^  PROTECTION  FROM 

or  clear  and  undoubted  notice,  would  be  a  proper  ground 
of  relief;  but  suspicion  of   notice,  though  a  strong  suspi- 

estate,  which  he  holds  in  trust  for  the  first  purchaser ;  and  the  second 
purchasing  with  knowledge  of  the  trust,  shall  hold  subject  to  (he  same 
trust.  But  if  the  second  purchaser  procures  his  deed  to  be  recorded  be- 
fore the  other,  and  then  sells  the  land  honn  fide,  and  for  a  valuable  consid- 
eration, to  a  person  wholly  ignorant  of  those  circumstances,  the  latter  will 
hold  the  land  against  the  first  purchaser.  If  this  were  not  so,  our  laws, 
which  require  the  registering  of  deeds,  would  be  useless,  if  not  worse  : 
because  a  purchaser,  after  the  most  thorough  examination  in  the  registry 
of  deeds,  and  finding  a  succession  of  conveyances,  all  in  legal  form 
and  in  perfect  order,  might  still  be  evicted  upon  proof  of  a  secret  trust, 
or  a  fraud,  on  the  part  of  some  former  owner.  Per  Jackson,  J.  in 
The  State  of  Connecticut  v.  Bradish,  14  Mass.  R.  296,  where  the  de- 
mandants sued  a  writ  of  entry  su?  disseizin  ;  and  gave  in  evidence  a 
mortgage  dated  Feb.  1802,  and  which  was  duly  recorded  ;  and  also 
another  mortgage,  executed  in  1S07  to  secure  the  same  debt  ;  but  not 
recorded  until  1808.  It  appeared  (hat  Thurber,  who  executed  the  last 
mortgage,  subsequently  executed  a  mortgage  to  the  Dwights  ;  and  this 
last  mortgage  was  executed  and  recorded  before  the  recording  of  the 
previous  mortgage.  Seven  days  after  the  Dwights  assigned  their 
mortgage  to  the  defendant  ;  and  which  was  afterwards  recorded.  It 
appeared  that  the  Dwights  knew  of  the  previous  mortgage  when  they 
received  their  deed.  The  jury  were  instructed  accordingly  that  the 
demandants  were  entitled  to  a  verdict ;  for  the  tenant  was  in  no  better 
condition  than  the  Dwights.  The  Court  granted  a  new  trial  ;  and 
Jackson,  J.  observed — "  if  the  money  expressed  in  the  notes  is  due  and 
payable  to  Bradish  by  virtue  of  the  assignment,  the  question,  whether  he 
shall  hold  the  land  as  security  for  that  money,  must  be  decided  like  any 
other  question,  relating  to  the  same  land.  Walley  v.  Walley  &  al.  in  1 
Vern.  484,  was  cited  in  the  argument  and  is  cited  by  Powell  on  Mort- 
gages, as  showing  that  the  assignee  of  a  mortgage  will  be  affected  by 
notice  to  the  assignor,  of  an  outstanding  title  to  the  land  mortgaged, 
and  will  take  subject  to  that  title. — The  case  furnishes  no  authority  to 
that  point.  The  assignee  there  had  actual  notice.  If  from  legal  evi- 
dence the  jury  should  find  that  Bradish  did  know  the  fact  of  the  pre- 
vious mortgage,  his  title  would  be  void  as  against  the  demandants  : 
or  rather  his  mortgage  would  be  postponed  to  theirs.  But  we  certain- 
ly cannot  say  that  he  shall  be  presumed  from  the  circumstance  that 
the  demandant's  deed  was  registered  before  the  assignment  to  Bradish, 
although  after  the  conveyance  to  the  Dwights,  to  know  of  the  prior 
conveyance.     When  a  purchaser  is   examining  his  title  in  the  registry 


UNREGISTERED  DEEDS,  &c.  257 

cion,  is  not  sufficient  to  justify  the  Court  in   breaking   in 

of  deeds,  and  finds  a  good  conveyance  to  his  grantor,  he  is  not  expect- 
ed to  look  further,  Bradish  it  is  true  had  only  to  look  to  the  registry 
for  the  next  day,  and  perhaps  only  to  the  next  page,  to  discover  this 
prior  conveyance  to  the  demandants.  But  he  is  not  required  to  look 
one  day  or  one  page  beyond. 

The  case  of  Trull  r.  Bigclow,  16  Mass.  406,  where,  although  the  de- 
mandant when  he  took  his  deed  from  Judd,  knew  that  Judd's  grantor, 
Caldwell,  had  knowledge  of  the  conveyance  to  Bosworth  ;  which  preced- 
ed his  in  point  of  time  :  and  the  question  was,  whether  the  knowledge  of 
this  fact  alone  would  defeat  the  estate  in  his  hands,  which  was  valid  in 
the  hands  of  Judd  1  "  Had  the  demandant  with  the  knowledge  of  the 
facts,  purchased  directly  of  Caldwell,  he  would  have  taken  nothing  by 
his  deed.  But  the  estate  was  in  Judd  indefeasible,  except  by  his  own 
act  :  Bosworth  had  lost  all  right  by  omitting  to  register  his  deed.  The 
demandant  knows  the  title  was  once  defective,  in  one  of  the  persons 
under  whom  he  claims  ;  but  he  also  knows  that  the  defect  was  cured, 
and  the  stain  upon  the  title  effaced.  He  is  a  bonajide  purchaser  of 
him  who  had  an  unimpeachable  title  ;   and  he  must  have  judgment." 

There  is  not  a  single  case,  at  law  or  equity,  where  a  bona  Jidt  pur- 
chaser has  been  deprived  of  his  title  by  the  proof  of  fraud  practfsed  by 
his  grantor  upon  the  person  of  whom  he  purchased  ;  unless  it  be  1 
Conn.  R.  527.  Per  Parker,  C.  J.  in  Somes  r.  Brewer,  2  Pick.  R. 
184.  The  demandant  in  this  case  made  an  assignment  of  a  mortgage 
to  one  Skinner,  who  entered  into  possession  ;  and  subsequently  as- 
signed the  mortgaged  estate  to  the  defendant.  Somes  also  conveyed 
another  tract  of  land  to  Skinner.  But  the  ground  upon  which  the  de- 
mandant rested  his  argument  was,  that  the  deeds  from  Somes  to  Skin- 
ner were  absolutehj  void.  The  Chief  Justice  observed.  Upon  the 
most  careful  examination  of  the  cases  cited  by  the  demandant's  coun- 
sel, I  do  not  perceive,  that,  in  any  instance,  a  deed  of  a  party  compe- 
tent to  contract  has  been  deemed  void  or  a  nullity  on  account  of  its  be- 
ing obtained  by  the  fraud  or  imposition  of  the  grantee.  Such  a  deed 
passes  the  estate,  and  is  only  voidable  by  showing  under  a  special  plea 
the  circumstances  which  go  to  defeat  it.  In  the  only  case  to  be  found 
in  our  own  reports,  in  relation  to  the  effect  of  fi-aud  upon  deeds,  (Bliss 
V.  Thompson,  4  Mass.  492),  Chief  Justice  Parsons,  with  his  usual  ac- 
curacy and  precision,  says,  *'  It  is  generally  true  that  a  man  shall  not 
be  received  to  aver  against  his  own  deed.  But  the  case  of  fraud  is 
always  an  exception,  which  vitiates  every  transaction  ;  and  a  deed  ob- 
tained by  fraud  is  to  be  considered  as  a  void  contract  as  to  the  fraud- 
ulent party."  This  has  always  been  understood  to  be  the  law  in  re- 
voL.   II.  33 


258 


OF  PROTECTION  FROM 


gard  to  fraudulent  conveyances,  both  of  real  and  personal  estate,  viz. 
that  deeds  made  to  defraud  or  delay  creditors,  are  void  as  against  such 
creditors  ;  but  are  nevertheless  good  between  the  grantor  and  grantee 
and  persons  claiming  under  them,  other  than  creditors,  and  will  sup- 
port a  title  in  a  purchaser  of  such  fraudulent  grantee,  for  valuable  con- 
sideration, without  notice.  The  case  of  Preston  v.  Crofat,  (1  Conn.  R. 
627,  note),  in  which  the  absolute  nullity  of  deeds  fraudulent  against 
creditors,  evea  as  against  a  bona  fide  purchaser  from  the  fraudulent 
grantee,  without  notice,  is  maintained  by  a  majority  of  the  judges  ;  and 
their  opinion  is  approved  and  sanctioned  by  Mr.  Chancellor  Kent. 
Still  as  their  decision  runs  counter  to  all  our  practical  notions  and  to 
many  judicial  decisions  in  this  state  ;  as  it  was  combated  with  great 
force  by  a  very  eminent  member  of  the  Connecticut  bench  ;  and  as 
the  decree  of  the  Chancellor  of  New-York  was  reversed  in  the  Court 
of  Errors;  we  cannot  think  it  will  be  adopted  beyond  the  jurisdiction 
of  Connecticut.  The  point  was  settled  before  Parsons,  C.  J.  in  the 
case  of  Sutton  v.  Lord,  1  Dane's  Abr.  631.  Pothier,  in  his  treatise  on 
obligations,  says,  "  when  a  party  has  been  drawn  into  a  contract  by 
the  fraud  of  another,  the  contract  is  not  absolutely  and  essentially  null 
because  a  consent,  although  obtained  by  surprise,  is  nevertheless  a 
conser<> ;  but  the  contract  is  vicious,  and  the  party  who  has  been  sur- 
prised, may  cause  it  to  be  rescinded,  because  it  is  against  the  good  faith 
which  ought  to  regulate  contracts."  Poth.  on  Oblig.  Pt.  1.  c.  1,  s.  1, 
art.  3,  no.  29. 

Broion  on  Sales,  396,  states  the  Scotch  law  to  be  the  same  in  regard 
to  fraud  ;  "  and  although  in  a  question  between  the  vendor  and  (he 
vendee,  such  a  contract  may  be  set  aside,  and  restitution  given  on  the 
head  of  fraud,  yet,  until  the  contract  is  so  set  aside,  the  vendee,  having 
the  property  of  the  subject  vested  in  him  by  delivery,  upon  a  habile 
(defeasible)  title,  is  able  to  transfer  the  property  to  another ;  and  there- 
fore a  second  sale,  made  by  him  to  a  bona  fide  purchaser,  will  be  effect- 
ual, and  his  fraud  cannot  be  made  the  title  of  such  a  purchaser." 
"  The  grand^istinction  taken,  is  between  the  case  of  a  sale  by  consent 
of  the  vendor,  though  unlawfully  obtained,  and  an  apparent  sale  by 
means  of  violence,  such  as  theft  or  forgery,  in  which  case  there  is  no 
consent  of  any  kind  ;  and  it  is  held,  that  a  sale  resulting  from  the  act 
and  consent  of  the  vendor  conveys  a  title,  which  is  defeasible  only 
while  the  thing  remains  in  the  hands  of  the  vendee.  And  the  learned 
Chief  Justice  added,  "  The  English  law  is  undoubtedly  the  same, 
though  as  such  cases  are  generally  disposed  of  in  Chancery,  there  are 
not  many  decisions  to  be  found  in  the  reports  of  the  common  law." 
He  cites  Parker  v.  Patrick,  6  Term  175.  Baron  Gilbert's  History  and 
Practice  of  the  High  Court  of  Chancery,  p.  287. 


UNREGISTERED  DEEDS,  &c.  259 

Marshall,  C.  J.  in  Fletcher  v.  Peck,  6  Cranch,  133,  is  to  the  same 
point. 

"  The  case  of  a  forged  deed  set  up  as  the  basis  of  a  title,  or  the 
deed  of  an  unlettered  person  to  whom  it  was  not  read,  or  was  read  wrong 
by  fraud,  may  be  different  in  principle  from  the  case  we  have  been  con- 
sidering, (Homes  V.  Brewer,  supra.)  the  law  perhaps  deeming  acts  like 
these  as   having  no   effect  at  all  upon  the  rights  of  the  parties.     But 

■  the  man   who  voluntarily   signs  and  seals  a  deed  knowing  its  contents, 
'i    though  cheated  into  the  act,  may  choose,  nevertheless,  to  let   the  deed 

stand  ;  and  if  he  does  until  an  honest  purchaser  contiding  in  his  act, 
and  who  is  never  apprized  by  him  of  any  defect,  pays  his  price  and  en- 
ters into  possession,  all  the  principles  of  justice  forbid  him  from  avoid- 

■  ing  the  title."    (Parker,  C.J.  2  Pick.  p.  204.) 

,i)  In  xinderson  v.  Roberts,  14  Johns.  515,  the  Court  thinks  the  case 
;  in  Connecticut  was  decided  on  the  peculiar  structure  of  the  statute 
in  that  state.  He  observed,  p.  522,  "  I  must  be  understood,  as  quali- 
fying the  right  of  the  purchaser  from  the  fraudulent  vendee  :  it  must  be 
prior,  in  point  of  time,  to  a  sale  for  a  valuable  consideration,  by  the 
fraudulent  grantor ;  and  it  must,  also,  be  prior  to  a  sale  on  execution, 
at  the  suit  of  the  creditor."  Although,  in  Jackson  v.  Tracy,  the  sale 
under  the  judgment  was  prior  to  the  deed  from  the  fraudulent  grantee, 
yet,  in  that  case,  the  registry  of  the  latter  deed  first  took  place,  and 
the  transaction  happened  in  a  county  where  deeds  are  required  to  be 
registered. 

Where  a  creditor  on  the  18th  December,  1820,  made  an  attachment, 
he  then  knowing  that  a  conveyance  had  been  made  on  the  11th  of  the 
same  month  :  it  was  held,  thiU  the  effect  is  the  same,  under  the  con- 
struction which  has  be«n  given  to  the  statute,  in  relation  to  such  credi- 
tor, as  it  would  be  in  relation  to  a  second  purchaser  under  like  circum- 
stances. "  Nothing  was  wanting  to  make  good  the  title  under  the 
conveyance  against  all  the  world,  but  public  notice  of  the  very  fact  of 
which  he  had  personal  knowledge."  Priest  v.  Rice,  1  Pick.  164.  S. 
P.  4  Mass.  641  ;   6  ib.  487  ;    10  ib.  60  ;    11  ib.  158. 

But  to  determine  what  notice  is  sufficient  of  a  prior  registry  is  more 
difficult.  Generally  an  open  possession  of  the  first  purchaser  will 
raise  a  legal  presumption  of  notice.  The  notice  of  an  unregistered 
deed,  must  be  a  necessary  inference  from  facts  proved.  M'Mechan 
V.  Grifling,  3  ib.  149. 

The  same  principle  does  not  apply  in  (he  case  of  a  prior  attachment 
as  in  the  case  of  a  prior  unrecorded  deed  ;  for  "  all  creditors  who  are 
in  pursuit  of  satisfaction  of  their  debts  by  means  of  attachment,  are 
considered  as  running  a  race  on  equal  ground,  and  each  is  entitled  to 
take  advantage  of  defects  in   the  proceedings  of  the  others."     Cushing 


2gQ  OF  PROTEC  riOxN  FROM 

upon  an  act  of  parlianient(«)(404).     A  lis  pendens  is  not 
deemed  notice  for  that  pnrpose(6)(405). 

I  have  brought  to  a  conclusion  the  observations  which 
I  proposed  to  offer  on  the  registering  acts.  If  I  might  be 
allowed  to  express  a  general  opinion  on  the  provisions  in 
these  acts,  explained  as  they  are  by  the  decided  cases, 
1  should  be  tempted  to  observe  that  they  might  be  im- 

(o)   See  2   Atk.  276  ;  and   Irons  v.  Kidwell,  1  Yes.  69,  cited .  Wyat 
V.  Burwell,  19  Ves.  jun.  435. 
(h)   19  Ves.  jun.  439. 


I 


V.  Hurd,  4  Pick.  253  ;  5  M'Gregoi  v.  Brown,  170.  The  doctrine  of 
constructive  notice  is  denied  by  Lord  Redesdale  in  Bushell  v.  Bushel!, 
1  Scho.  &  Lef.  90,  but  his  decision  rests  on  the  construction  of  the 
Irish  registry  acts,  which  differ  from  those  of  England,  and  from  ours. 
He  denies  that  searching  the  records  is  conclusive  notice.  But  in 
Shaw  V.  Poor,  6  Pick.  86,  where  a  deed  executed  by  two  was  acknow- 
ledged only  by  one,  the  registry  was  held  to  be  sufficient  :  and  it  makes 
no  difference  in  this  respect  whether  the  grantors  were  seised  as  tenants 
in  common  of  the  whole  land  conveyed,  or  are  separately  seised  of  dis- 
tinct parts.  The  case  of  Heister  v.  Fortner,  2  Binn.  40,  was  different  ; 
the  question  there  arose  on  a  deed  which  had  not  been  regularly  re- 
corded ;  the  publicity  required  by  statute  had  not  been  given  ;  and  no 
one  was  bound  to  take  notice  of  a  deed  defectively  proved,  and  not 
regularly  registered. 

A  bond  and  deed  executed  separately  but  amounting  to  a  mortgage, 
the  recording  the  mortgage  alone,  may  be  sufficient,  if  the  purchaser  or 
creditor  knows  it  to  be  a  mortgage.  "  By  the  record  the  title  was  in 
the  judgment  debtor  ;  the  bond  was  in  the  pocket  of  the  grantor :  the 
knowledge  that  a  bond  was  given  by  the  grantee  to  the  grantor,  without 
any  knowledge  of  its  effect,  would  be  no  proof  of  fraud  in  a  subse- 
quent purchaser  or  attaching  creditor."  To  be  effectual  notice,  it  must 
be  known  to  constitute  a  mortgage,  Newhallr.  Burt,  et  al    7  Pick.  157. 

(404)  See  Detj  v.  Dunham,  2  Johns.  Ch.  Rep.  182,  190.  S.  C.  on 
appeal,  15  Johns.  Rep.  655.      Taylor  v.  Heriot,  4  Des.  227,  238,  239. 

(405)  As  to  the  question  whether  a  lis  pendfiis,  in  chancery,  shall  be 
deemed  notice  to  a  subsequent  purchaser,  or  not,  see  J\Iurray  v.  Bal- 
lon, 1  .Johns.  Ch.  Rep.  566.  Murray  v.  Lylburn,  2  Johns.  Ch.  Rep. 
441.  .Murray  v.  Finsler,  2  Johns.  Ch.  Rep.  166,  158.  Green  v. 
Slaijter,  4  Johns.  Ch.  Rep.  38. 


UNREGISTERED  DEEDS,  &c.  261 

proved.  1  approve  rather  of  the  act  for  Ireland,  though 
not  to  the  extent  to  which  it  has  been  carried  by  the 
(*)decisions  of  Lord  Redesdale.  I  would  by  no  means 
give  an  equitable  charge  the  etfect  of  a  legal  conveyance 
by  the  mere  act  of  registry  ;  at  the  same  time  that  I  would 
insure  the  priority  of  the  charge  as  an  equitable  charge, 
by  making  the  registry  of  an  instrument  notice  to  all 
subsequent  [nirchasers.  The  rule,  that  notice  of  an  un- 
registered incumbrance  shall  affect  the  conscience  of  a 
subsequent  purchaser,  I  would  not  disturb,  contemplating 
the  present  temper  of  the  Courts  to  confine  this  doctrine 
to  cases  of  clear  notice. 

V.  1  cannot  now  dismiss  this  subject  without  offering 
a  few  cursory  observations  on  the  bill  which  the  House 
of  Commons  rejected  for  establishing  a  general  register, 
as  fresh  attempts  will  no  doubt  be  made  to  carry  that 
measure.  1  may  premise,  that  if  such  a  bill  passes,  it 
will  form  an  addition  to  this  work,  but  will  not  call  for 
any  alteration  of  the  law  in  the  text,  inasmuch  as  its 
provisions  will  be  prospective,  and  will  leave  titles  in 
register  counties  to  depend  for  the  time  past  upon  the 
law  as  it  now  stands. 

ft  should  be  borne  in  mind,  that  the  establishment  of 
a  register  upon  the  best  plan  that  could  be  devised, 
would  not  refieve  the  present  titles.  To  preserve 
them,  the  present  legal  estates  must  be  retained  and 
the  present  registers  resorted  to.  Some  rules  should  be 
introduced  to  relieve  titles  as  they  now  stand  : — 1.  the 
representation  to  terms  of  years  should  be  facilitated  ; 
2.  the  liens  acquired  by  judgments,  &c.  should  be  regu- 
lated or  removed  as  against  bona  fide  purchasers  ;  for 
example,  it  might  be  required,  in  order  to  bind  a  pur- 
chaser, that  the  description  of  the  person  against  whom 
a  judgment  is  to  operate  should  be  entered  up  :  3.  the  law 
of  priorities  as  between  mortgagees  should  be  altered  ; 
4.    the    doctrine  of   notice  should    be  restrained  ;    and, 

(*224) 


262 


OF  PROTECTION  FROM 


lastly,  all  the  present  registers,  including  judgments,  he. 
(*)should  be  revised  and  rendered  accessible  and  useful. 
Such  alterations  would  assist  titles  as  they  now  stand, 
and  future  purchasers  under  them.  A  new  register  would 
not  operate  beneficially  on  titles 'for  many  years  to  come. 
There  is  therefore  no  hurry.  And  a  general  measure 
should  follow,  and  not  precede  or  include  the  proposed 
alterations.  The  present  expense  in  regard  to  titles  is, 
in  forty-nine  cases  out  of  fifty,  suj)erfluous ;  but  as  every 
one  may  be  in  danger,  all  are  guarded  against  it.  This 
precaution  has  very  much  increased  within  the  last  thirty 
years,  but  not  from  any  increased  danger. 

The  present  registers  have  led  to  much  litigation,  and 
have  occasioned  great  expense.  In  one  case,  in  Ireland, 
the  costs  of  a  search  wexe  enormous ;  in  several  instances 
in  both  countries  they  amounted  to  40/.  or  50/.  The 
officers  themselves  admit  that  even  their  searches  were 
frequently  insufficient,  and  that  they  missed  registered 
documents.  Probably  not  one-twentieth  part  of  the 
searches  is  effectual,  or  could  be  safely  relied  upon. 
Great  numbers  of  instruments  have  been  registered  in  a 
manner  directly  contrary  to  the  provisions  of  the  acts,  and 
therefore  ineffectually  in  law.  The  slightest  mistake  iwdy 
be  fatal.  If  a  man's  name  be  Crompton,  and  it  is  written 
Compton  in  the  register,  he  would  lose  his  estate  in  a 
competition  with  another,  although  later  claimant,  in 
whose  registry  there  was  no  error. 

The  proposed  system  is  a  complicated  one.  It  is  often 
almost  impossible  to  ascertain,  after  a  deliberate  consid- 
eration of  the  deeds,  under  which  of  several  titles  an 
estate  is  held  ;  and  a  mistake  in  that  particular,  or  a  fraud 
committed  by  the  seller  or  mortgagor,  would  defeat  the 
title.  Great  difficulty  will  arise  from  the  necessity  of 
opening  new  titles  with  new  symbols,  connected  with  the 
old  ones.  No  one  will  take  the  trouble  to  make  these 
(*)what  they  should  be,  with  a  view  to  future  purchasers. 

(*225)   (*226) 


UNREGISTERED  DEEDS,  &c.  263 

Every  one  will  content  himself  with  such  an  entry  as  he 
thinks  will  secure  his  own  title.  The  officers  cannot  he 
depended  upon.  The  trouble  will  be  immediate,  and  the 
danger  altogether  remote  and  problematical. 

The  index  merely  refers  to  the  deed  ;  so  that  recourse 
must  always  be  had  to  a  copy  of  the  deed,  particularly 
for  the  parcels.  In  how  many  cases,  from  lassitude 
or  want  of  ability,  will  the  search  be  improperly  con- 
ducted ?  After  some  lapse  of  time,  it  will  require  con- 
siderable legal  ability  to  make  a  perfect  search  ;  and  by 
and  by,  every  man  must  resort  to  the  registry  for  copies  of 
his  deeds.  The  system  of  symbols  cannot  be  carried 
throughout :  therefore  there  must  be  two  systems  and 
many  indexes,  at  least  four. 

1.  General  documents,  which  may  be  mixed  up  with 
other  classes  and  other  symbols. 

2.  Wills,  alphabetically. 

3.  Commissions  of  bankrupt,  alphabetically. 

4.  Judgments  and  Crown  debts,  in  the  same  manner. 
And  all  the  deeds  must  be  referred  to  and  read.  The 
purchaser  will  be  answerable  for  a  registry  under  the 
proper  symbol ;  and  if  he  make.a  mistake  in  the  root  of 
his  title,  or  be  deceived  in  it,  he  will  lose  his  estate. 
Should  a  purchaser  be  exposed  to  such  a  hazard  ?  Great 
knowledge  and  care  are  requisite  in  the  officers,  and  that 
in  all  times  cannot  be  dej)ended  upon.  The  term  sym- 
bol has  been  withdrawn,  but  the  system  has  not  been  al- 
tered. 

The  greater  number  of  frauds  is  committed  in  the  sale 
to  different  persons  of  a  reversionary  interest  in  stock, 
but  no  provision  is  made  for  registering  instruments 
affecting  such  property. 

Disclosure  is  now  considered  as  highly  desirable  ;  but 
in  the  early  consideration  of  the  subject  the  Report 
(*)itself  suggested  a  mode  of  avoiding  a  disclosure  by 
vesting  the  estate  in  a  trustee  as  owner,  and    taking  a 

(*227) 


264  ^'^  PROTECTION   FROM 

separate  deed  of  trust  from  him  not  registered.  And  the 
Report  said,  that  in  many  cases,  such  as  that  of  an  ap- 
pointment of  a  reversionary  interest,  or  of  portions  in 
favor  of  children,  the  registration  might  be  safely  de- 
layed ;  so  that  secret  trusts  were  to  be  resorted  to,  and 
one  title  appear  on  the  register,  and  another  off  it.  If 
appointments  should  be  withheld  from  the  register,  a  man 
might  biiy  a  child's  portion,  as  in  default  of  appointment, 
or  the  estate  as  not  charged  with  portions,  although  the 
child's  interest  might  have  been  varied  or  defeated,  or  the 
estate  burthened  with  heavy  portions.  The  register  would 
not  be  a  safe  guide. 

In  order  to  render  the  register  effectual,  it  was  in  the 
first  instance  proposed,  that  the  operation  of  general 
words  in  the  parcels  should  be  cut  down ;  but  this  was 
a  violent  method  of  giving  an  effect  to  the  registry,  which 
would  not  have  been  endured.  Alterations  in  these 
respects  have  been  made,  to  remove  the  objections  to  the 
system,  but  they  are  inherent  in  it. 

The  expense  to  which  a  register  may  lead,  is  proved 
by  the  evidence  of  Messrs.  Wimburn  and  Collett,  who  sent 
a  clerk  down  to  York  ta  search  the  register,  and  remain 
there  searching  from  day  to  day  until  the  transaction  was 
closed.  The  establishment  of  one  register  for  all  Eng- 
land and  Wales  would  lead  to  many  journeys  to  the 
metropolis,  at  the  expense  of  purchasers. 

The  only  ground  upon  which  a  general  registry  can  be 
supported  is  the  safety  of  honest  purchasers.  But  fre- 
quently by  the  negligence  of  agents,  attornies,  clerks, 
sometimes  by  frauds,  even  for  the  value  of  the  fees  which 
have  often  been  charged,  although  the  deeds  have  not 
been  registered  ;  and  at  times  by  the  negligence,  delay, 
or  want  of  skill  of  the  officers,  or  by  oversights  from  which 
(*)the  most  vigilant  are  not  always  exempt,  heavy  losses 
have,  under  such  a  protective  measure,  fallen  on  bonajide 

(*228) 


UNREGISTERED  DEEDS,  &r. 


265 


purchasers,  \vlio  liav^e  themselves  been  diligent.  The 
class,  therefore,  to  that  extent,  are  sufferers.  It  is  in  vain 
to  hope  th'it  the  registry  will  save  the  class  from  an  equal 
degree  of  loss  by  protecting  them  against  concealed 
intiumbrances  to  the  same  amount,  for  ignorance,  sloth, 
accident,  petty  frauds,  are  more  likely  to  occur  than 
a  great  and  direct  fraud  on  a  purchaser  or  mortgagee  by 
suppressing  an  incumbrance,  and  yet  the  slightest  inatten- 
tion or  accident  may  be  more  fatal  to  a  purchaser,  with 
the  benefit  of  the  Act  of  Parliament,  than  the  vilest 
fraud  without  that  protection.  No  law  can  impart  acti- 
vity and  intelligence  to  idle  and  ignorant  persons,  and 
many  have  been  ruined  without  any  neglect  of  their  own, 
by  the  operation  of  the  register  acts. 

The  Committee  of  the  House  of  Commons  thousrht  that 
if  it  were  made  the  law  of  the  land  that  registration  of 
the  conveyance  should  be  as  essential  to  the  safety  of  the 
purchaser  as  enrolment  now  is  to  the  validity  of  a  bargain 
and  sale,  men  would  shape  their  course  accordingly.  It 
was  not,  they  said,  to  be  presumed,  that  the  performance 
of  so  essential  an  act  would  be  neglected  in  the  one  case 
more  than  the  other.  In  making  these  remarks,  the 
Committee  were  of  course  not  aware  that  the  instances 
are  numberless  in  which  bargains  and  sales  have  not 
been  enrolled,  although  they  become  inoperative  if  not 
enrolled  within  six  months  ;  and  in  very  many  cases  the 
validity  of  recoveries  depends  upon  the  enrolment. 
Hundreds  of  new  recoveries  have  been  suffered  at  a  vast 
expense  in  consequences  of  the  neglect  to  enrol  bargains 
and  sales,  making  the  tenant  to  the  prcecipe. 

This  question  must  be  looked  at  as  one  of  profit  and 
loss  to  the  class  :  for  even  the  existing  statutes  have  not 
the  merit  of  giving  a  priority  to  an  honest  purchaser  over 
(*)a  dishonest  one  ;  but  it  is  always  a  question  between 
two  honest  purchasers  ;  one  must  suffer  ;  and  the  loss  is 
simply  transferred  from  one  of  the  class  to  another  of  the 

VOL.  II.  34  (*229; 


2gg  OF  PROTECTION  FROM 

same  class.  Whether  the  proposed  act  would  have 
aggravated  the  evils,  we  shall  presently  consider.  Pro- 
bably few  persons  have  seen  more  titles  than  the  Avriter 
of  these  remarks,  and  the  cases  within  his  knowledge  of 
suppressed  incumbrances  are  very  few  indeed  ;  but  he 
believes  he  never  saw  a  single  title  in  a  register  county 
in  which  important  deeds  had  not  been  omitted  to  be 
registered. 

Such  a  general  measure,  if  established,  should   be   at- 
tended w  ith  small   expense  ;  for  if  expensive,  its   benefits 
would  be   purchased   too  dearly  ;    and  if  they  must    be 
bought,   small    purchases  and     trifling   mortgages  would 
be  diminished,  to  the  great  injury  of  the  little  farmer  and 
the  middle  classes  of  society  generally,  and,  therefore,  of 
the   country  at  large.       If  the   rate  of  insurance   be  too 
high,  the  mariner  prefers  encountering  the    perils  of  the 
sea.     Such  a  measure  is  of  little  use  to  small  pm'chasers, 
for  they,  as  experience   has  shown,  are  seldom   exposed 
to  danger  from   fraud.      The   registry  would   be  as   ex- 
pensive upon  a  purchase  of  300/.  as  upon  one  for  3,000?. 
The   expense,  therefore,  should   not  exceed  what  a  small 
purchase  could  fairly  bear.     Indeed,  the  measure  is  pro- 
posed to  embrace  small  transactions,  not  for  their  protec- 
tion, but  to   render   the  plan   itself  perfect.      The  office 
should    be   accessible,   and   therefore    it   should   be  local. 
The   plan  should   be  simple  ;  otherwise   the   chance  of  a 
miscarriage  would  far  outbalance  any  possible  good.     No 
man's   rights  should    be   unnecessarily,   much   less   wan- 
tonly, broken  in  upon.      Therefore    of  course,  no  man's 
title-deeds  should  be  taken  from  him  ;  and   it  would  not 
obviate  the  objection  to  a  provision  requiring  the  deposit 
of  the  deeds,  that  a  duplicate  copy  might  be  deposited  in 
(*)lieu  of  the  original  ;   for  the  rich  ought  not  to  be  put  to 
the  expense,  and  the   poor  could   not   avail  themselves  of 
the  option,  but  must  deposit   their  deeds.     A  man  whose 
deeds  were    thus  deposited^  would   be  prevented    from 

C*230) 


UNREGISTERED  DEEDS,  &c. 


267 


indorsing  any  deed  upon  a  prior  one;  by  which,  in  thou- 
sands of  cases,  great  expense  is  avoided,  and  he  would 
not  be  able  to  raise  money  by  a  deposit  of  the  deeds 
themselves.  The  first  men  in  the  city  assert,  that  in 
moments  of  panic  the  want  of  such  a  power  might  be 
fatal.  An  Englishman  likes  to  have  his  "  sheep  skins" 
in  his  own  box  in  "  his  own  castle."  A  deposit  in  London 
of  all  deeds  would  require  a  transmission  of  deeds  from 
every  part  of  England  and  Wales,  and  would  expose 
every  man's  title-deeds  to  be  lost  or  defaced.  Besides, 
a  collection  in  London  of  all  the  title-deeds  of  all  the 
property  in  England  and  Wales  would,  in  times  of  con- 
fusion and  revolution,  probably  invite  the  Jirst  blow.  They 
who  approve  of  Spencean  principles  would  doubtless 
consider  it  a  considerable  step  towards  an  equal  division 
of  property,  that  no  man  could  show  a  separate  title  to 
any  given  portion  of  it.  The  risk  of  fire;  the  dangers  to 
be  apprehended  from  the  sudden  ebullition  of  a  mob  ;  the 
dishonesty  of  inferior  officers  in  purloining  the  old  parch- 
ments for  sale,  and  the  like,  may  be  added  to  the  cata- 
logue. The  plan,  moreover,  would  open  a  fine  harvest 
to  a  legitimate  government  for  taxation,  and  to  an  illegi- 
timate government  for  confiscation.  The  State  would 
possess,  in  one  building,  all  the  title-deeds  to  all  the  pro- 
perty in  England  and  Wales.  If  the  curse  of  civil  war 
were  to  fall  upon  England,  few  would  like  the  opposite 
faction  to  be  in  possession  of  their  title-deeds.  The 
Crown  would  have  uninterrupted  access  to  all  the  docu- 
ments of  any  individual  whose  estate  it  should  seek  to 
recover. 

It  would  be  a  poor  bribe  to  offer  to  the  present  holders 
of  property,  that  they  may  retain  the  deeds  they  have. 
(*)If  we  legislate  for  the  future,  we  should  not  impose 
burdens  which  we  would  ourselves  reject.  Besides,  the 
measure  would  affect  every  man's  future  title-deeds  :  so 


2gQ  OF  PROTECTION  FROM 

that  in  a  short  time  we  should  have   only  some  of  our 
own  title-deeds  in  our  own  possession. 

Such  a  plan  should  of  course  compel  a  man  to  no 
unnecessary  disclosure  of  his  dealings.  The  only  legiti- 
mate object  is  notice  to  future  contractors  ;  for  that  pur- 
pose it  is  not  necessary  that  the  whole  of  the  transaction 
should  be  disclosed.  It  is  in  vain  to  ask  commercial  men 
whether  such  disclosures  are  mischievous.  No  man 
desires  to  make  his  private  affairs  public,  and  the  public 
have  no  right  to  pry  into  his  affairs  except  for  some  legi- 
timate object,  and  this  case  presents  none.  But  if  all  the 
dealings  of  men  of  property,  and  all  their  title-deeds  were 
to  be  disclosed  to  the  world,  the  misbhiefs  would  be 
obvious ;  immediate  ruin  would  not  unfrequently  be 
occasioned  ;  flaws  in  titles  would  be  readily  discovered  ; 
for  the  plan  will  not  add  to  the  learning  or  sagacity  of 
real  property  lawyers  ;  and  Jews  would  have  an  opportu- 
nity of  ascertaining  to  what  extent  they  could  safely 
supply  the  demands  of  an  improvident  heir.  Many  a 
young  man  has  been  saved  from  ruin  because  he  had  not 
the  means  of  proving  to  money-lenders  what  his  interest 
was  in  the  family  property. 

Such  a  plan,  moreover,  whilst  it  gave  protection  to  the 
diligent  should  not  prefer  a  dishonest  to  an  honest  incum- 
brancer. As  the  only  legitimate  object  of  such  a  register 
is  to  impart  knowledge,  its  object  would  be  equally  ac- 
complished if  the  subsequent  purchaser  or  mortgagee, 
although  his  deed  was  first  registered,  had  clear  notice  of 
the  prior  deed.  The  plan,  therefore,  should  leave  the 
present  rule  of  equity  to  operate,  which  would  postpone 
the  man  who  bought  or  advanced  his  money  with  notice 
of  a  prior  right,  although  obviously  express  notice  should 
(*)in  such  a  case  be  required  ;  and  it  would  be  proper  to 
,  make  registry  of  itself  notice,  so  as  to  make  equitable 
estates  as  such  binding,  if  registered.  As  a  purchaser 
or  mortgagee  must  employ  an   attorney,  if  a  register  be 

(*232) 


UNREGISTERED  DEEDS,  &c.  269 

established,  the  latter  should  be  answerable  to  his  em- 
ployer for  neglecting  to  search  the  register,  or  performing 
that  duty  in  a  perfunctory  manner.  The  officer  himself 
should  be  responsible  to  the  suffering  party  in  damages, 
for  neglect,  carelessness  or  misconduct. 

Of  course  such  an  office  should  not  be  a  Government 
one  ;  nor  be  made  a  source  of  revenue.  Taxation,  the 
registries  would  not  long  escape  ;  they  offer  an  irresist- 
ible temptation  to  a  Chancellor  of  the  Exchequer,  and  if 
he  acted  cautiously  they  might  in  time  be  made  a  sure 
foundation  for  a  new  land-tax. 

The  existing  statutes  adhered  pretty  closely  to  the 
rules  above  mentioned.  The  offices  were  local,  domestic, 
and  readily  accessible.  No  man  was  required  to  dis- 
close any  more  of  his  deed  than  would  identify  it  and  its 
general  nature,  and  show  the  property  which  it  affected  ; 
and  of  course  no  one  was  compelled  to  give  up  the  deeds 
themselves,  or  furnish  duplicate  copies  of  them.  No  un- 
necessary expense  was  created.  The  acts  legalized  no 
fraud,  but  left  equity  to  interfere  where  a  man,  with 
notice  of  another's  right,  attempted  to  avail  himself  of 
the  register  as  an  engine  of  fraud.  They  left  also  every 
man's  attorney  to  his  common  law  liability  for  negli- 
gence, and  rendered  the  registering  officer  himself  liable 
for  neglect.  Government  had  nothing  to  do  with  the 
office.  The  register  was  appointed  by  the  lord  lieute- 
nant, and  the  clerks  by  the  chief  officer.  These  acts  led 
to  no  ext{3nsive  mischief,  because  the  persons  who  knew 
that  certain  deeds  were  not  registered,  of  course  must 
have  had  notice  of  the  deeds  themselves ;  and  the  rule 
of  equity,  which  the  acts  did  not  interfere  with,  forbad 
(*)such  a  person  to  take  advantage  of  the  want  of  regis- 
try ;  and  therefore  it  was  indeed  seldom  that  a  title  was 
defeated  by  the  prior  registry  of  a  subsequent  title.  The 
system,  however,  does   not  work  well  ;  because  it  is  ex- 

(*233) 


270  ^^"  PROTECTION  FROM 

pensive   to   make  a  long  search,  and  almost  impossible  to 
make  an  efifectual  one. 

Now  the  proposed  act  was  to  extend  the  system,  and 
to  have  only  one  office  in  the  metropolis  for  all  England 
and  Wales  ;  to  vest  the  appointment  of  a  registrar-general 
in  the  Crown,  and  of  the  inferior  officers  in  the  Treasury. 
It  is  hard  upon  a  government  thus  to  have  patronage  forced 
upon  it.  If  it  be  desirable  to  extend  registration  over  the 
whole  of  the  country,  yet  experience  has  shown  that  the 
plan  of  registration  may  not  answer.  The  existing  offices 
afforded  the  means  of  trying  the  new  plan  upon  a  limit- 
ed scale  ;  but  instead  of  availing  themselves  of  this  oppor- 
tunity, the  proposers  at  once  established  the  new  system 
over  the  whole  of  England  and  Wales.  Compensation 
was  to  have  been  given  to  the  present  holders  of  office  ; 
and  however  ill  the  new  plan  might  have  worked,  it  would 
with  difficulty  have  been  abolished,  and  certainly  not 
without  more  compensations. 

In  all  material  respects  the  principles  of  the  existing 
law  were  departed  from.  There  was  to  be  one  great 
office  in  London.  Men  were  to  be  compelled  to  deposit 
their  deeds,  or  duplicates  of  them  ;  and  even  this  had 
not  the  merit  of  rendering  it  Unnecessary  to  send  other 
particulars  with  the  deeds  ;  so  that  the  nevv  provisions 
had  all  the  inconveniences  of  the  old,  and  imposed  the 
additional  necessity  of  depositing  the  deed,  or  a  duplicate 
of  it ;  indeed  the  incanveniences  of  the  existing  acts 
were  aggravated,  for-  they  once  and  for  all  prescribed 
what  was  to  be  furnished,  whilst  the  new  bill  rendered 
it  necessary  to  send  such  particulars  as  the  registrar- 
general,  after  certain  Gazette  announcements,  should 
(*)from  time  to  time  require.  The  deeds  were  to  be 
written  as  the  officer  should  direct,  or  a  fine  was  to  be  paid. 
Of  course  this  plan  exposed  to  public  view  every  man's 
disposition  of  his  property.     Certain  checks  were  intro- 

(■*234) 


UNREGISTERED  DEEDS,  &c.  271 

duced  in  order  to  prevent  improper  inspections  ;  but  they 
were  worse  than  useless,  for  they  appeared  to  give  a  pro- 
tection which  in  reality  they  never  could  have  afforded. 
It  is  said  that  men  w  ill  not  search  from  curiosity ;  that 
wills  are  not  inspected  from  that  motive.  But  the  fact  is, 
that  wills  are  constantly  resorted  to  by  persons  who  have 
no  interest  in  the  property.  Besides,  dead  men's  wills 
cannot  be  compared  with  living  men's  deeds.  It  is  one 
thing  to  know  what  property  a  man  takes  under  his 
father's  will,  and  another  how  he  has  himself  disposed  of 
it.  With  a  view  to  attack  men's  titles,  daily  resort  will 
be  had  to  the  registry.  Stratagems  of  all  sorts : — pur- 
chases of  a  lot  at  an  auction  ;  bribes  to  agents  or  clerks, 
are  now  resorted  to  in  order  to  obtain  from  a  man's  muni- 
ment chest  the  materials  for  an  impeachment  of  his  title. 
But  it  is  urged,  why  is  not  this  done  as  to  copyholds? 
The  answer  is,  that  it  frequently  is,  as  far  as  the  nature  of 
the  court  rolls  will  admit.  The  writer  has  known  several 
instances  in  which  court  rolls  have  furnished  evidence  for 
an  action  against  the  owner  of  copyholds,  whilst  none 
could  be  obtained  for  an  attack  upon  his  title  to  freeholds, 
although  equally  subject  to  the  f^aw^ 

The  Committee  of  the  House  of  Commons,  in  their 
Report,  appear  to  suppose  that  all  titles  are  in  future  to 
be  free  from  flaws.  They  say,  "  that  no  present  deed  is 
"  to  be  registered,  and  that  the  purchaser  will  take  care 
"  that  his  deed  is  effectual  to  give  him  the  estate  for  which 
"  he  has  contracted  ;  and  it  can  in  no  wise  prejudice 
"  him  to  show  to  the  world  that  he  has  really  become  the 
"  owner  of  that  which  he  intended  to  make  his  by  pur- 
"  chase.  No  defect  patent  upon  deeds  ought  to  be  con- 
"  cealed.  (*)These  deeds  ought  to  be  disclosed  in  such 
"  a  manner  as  to  preclude  or  defeat  all  persons  who  have 
"  no  interest,  and  to  let  in  the  rightful  owner.  An  expo- 
"  sure  of  this  kind,  and  with  this  view,  cannot  be  too  open  ; 
"  it  is  the  very  object  and  chief  aim  of  registration.     No 

(*235) 


272  °^  PROTECTION  FROM 


*1 

"flaw  need  be  disclosed  in  old  deeds  not  registered  ;  and  vl 
"  if  the  title  appearing  on  the  register  is  bad,  defective  or  ftj 
"  doubtful,  justice  will  be  done,  and  the  right  established, 
"  by  an  appeal  to  judicial  decisions."  This  new  view  of 
the  object  of  registration  ought  not  to  be  lost  sight  of.  We 
will  protect  you,  say  they,  from  putting  on  the  register 
your  present  deeds,  so  as  to  guard  against  your  exposing 
any  defects  in  your  title.  But  how  is  this  reconcilable  with 
the  moral  precepts  which  follow  ?  Why  are  present  defects 
to  be  concealed,  and  future  ones  exposed  ?  But  surely 
it  is  a  duty  of  imperfect  obligation  to  expose  one's  title- 
deeds  to  the  world  in  order  that  any  defects  in  them  may 
be  detected,  and  that  a  man  may  be  stripped  of  all  his 
property.  The  law  of  England  acknowledges  no  such 
obligation  ;  and  few  indeed  are  the  cases  in  which  an 
honest  purchaser  or  mortgagee  is  compelled  to  produce 
his  deeds.  The  Committee  observe,  in  a  strain  of  playful 
irony,  that  a  purchaser  will  take  care  to  have  an  effectual 
title.  But  with  this  view  it  may  be  prudent  to  enact, 
that  conveyancers  and  solicitors  shall  in  future  commit 
no  blunders. 

The  registry  of  the  deeds  themselves,  we  are  told,  will 
protect  persons  from  the  loss  of  them.  Now,  is  this  a 
legitimate  object  of  legislation  ?  Why  not  insure  every 
man's  house,  stock  and  cattle  for  him,  and  charge  him 
with  the  premium  ?  Why  not  register  his  ledger  and 
day-book,  and  his  annual  balances  ?  Speaking  generally, 
men  should  be  left,  under  wise  laws,  to  take  care  of 
themselves  and  their  property. 

By  the  proposed  system  title-deeds  would  have  been 
(*)exposed  to  danger,  in  being  transmitted  to  London  from 
all  parts  of  the  country  ;  and  this  was  not  obviated  by 
the  channel  of  transmission  being  through  the  Post-office. 
The  Postmaster-general  had  no  doubt  provided  athletic 
postmen  to  carry  the  daily  burdens  ;  and  for  the  mails, 
doubtless,  light  vans  would  have  been  substituted. 

(*236) 


UNREGISTERED  DEEDS,  &c;  273 

As  the  great  object  of  the  act  was  to  make  registration 
binding  in  every  event,  a  subsequent  purchaser  or  mort- 
gagee, although  he  had  notice  of  the  prior  conveyance, 
was  not  to  be  bound  by  it,  if  he  got  his  own  deed  first  upon 
the  registry.  And  even  in  like  circumstances  a  subsequent 
equitable  title  was  to  be  made  good  against  the  prior 
'  purchaser  or  6o;i«^(/e  owner.  This  indeed  would  have  led 
>  to  the  introduction  of  infinitely  greater  mischief  than 
that  which  was  proposed  to  be  remedied  by  the  act ; 
for  here  was  an  express  invitation  to  roguery.  An  agent 
might,  although  not  avowedly,  have  a  direct  interest  in  neg- 
lecting to  register  the  deed  of  his  principal.  And  every 
profligate  owner  of  an  estate  would  be  endeavoring  to 
raise  money  upon  it  at  the  expense  of  a  bona  fide  incum- 
brancer or  purchaser,  whose  confidence,  or  the  careless- 
ness ?)r  misconduct  of  whose  agent,  had  led  to  an  omission 
to  register  his  deed.  Abolish  the  equitable  operation  of 
notice  in  these  cases,  and  the  most  revolting  frauds 
might  be  practised,  which  equity  would  not  be  able  to 
relieve  against.  If  the  rule  of  equity,  which  is  universal, 
is  a  bad  one,  correct  or  annul  it,  but  do  not  in  this  par- 
I  ticular  case  alter  it,  whilst  you  leave  it  thus  stigmatized, 
to  have  its  full  bearing  upon  all  other  cases. 

The  Committee  of  the  House  of  Commons  thought 
that  a  subsequent  deed  registered  ought  to  prevail  over 
a  prior  deed  unregistered,  although  the  party  who  regis- 
tered the  subsequent  deed  had  notice  at  the  time  that  the 
prior  deed  had  been  executed  ;  but  that  if  it  could  be 
proved  that  the  subsequent  deed  had  been  obtained  by 
(*)fraud,  and  proof  of  this  is  altogether  independent  of 
notice,  registration  certainly  ought  not  to  give  that  deed 
validity  ;  and  they  conceived  that  the  registration  of  a' 
fraudulent  deed  would  not  prevent  a  court  of  equity  from 
giving  tfiat  relief  which  the  justice  of  the  case  requires. 
The  proposed  act  therefore  provided  that  priority  should 
not   be   taken  away   by  equity  in  consequence   of  notice, 

vol..   II.  35  (*237) 


274 


OF  PROTECTION  FROM 


and  that  where  priority  was  given  to  any  person  claim- 
ing for  valuable  consideration  under  a  subsequent  assur- 
ance an  equitable  estate  or  interest,  such  priority  should 
be  enforced,  althougli  the  person  claiming  under  such 
subsequent  assurance  should  have  been  affected  with 
notice.  Nothing  can  be  more  opposed  than  these  pro- 
visions are  to  the  principles  of  equity  as  administered  in 
this  country  for  centuries.  Our  rules  of  equity  have  had 
a  powerful  tendency  to  establish  fair  dealing  between 
man  and  man  in  contracts.  Let  the  Legislature  beware 
how  it  wantonly  disturbs  those  rules.  Equity  knows  no 
higher  fraud  than  a  man's  purchasing  an  estate  which 
he  is  aware  has  already  been  sold  and  conveyed  to  an- 
other, with  an  intent  to  take  advantage  of  a  slip  in  the 
formalities  of  the  registry  of  the  first  purchaser's  con- 
veyance, or  perhaps  of  an  omission  to  register  it*alto- 
gether.  According  to  the  new  rule,  a  man  may  contract 
for  the  purchase  of  an  estate  and  pay  for  it — of  course  he 
would  take  care  to  have  a  good  bargain — although  he 
knows  that  it  has  already  been  conveyed  to  a  prior  pur- 
chaser whose  deed  is  not  registered,  and  may  then  compe! 
the  first,  the  honest  purchaser,  to  convey  the  estate  to  him. 
A  court  of  iniquity  should  be  established,  to  give  perfec- 
tion to  such  base  transactions.  In  the  first  attempts  by 
the  Commissioners  at  legislation,  although  notice  was 
made  inoperative  against  a  registered  deed,  yet  rights 
of  action  were  given  to  counterbalance  the  operation  of 
the  rule.  This  was  an  indirect  and  absurd  mode  of 
(*)giving  effect  to  notice.  It  was  necessarily  withdrawn  ; 
but  the  clause  abolishing  the  operation  of  notice  ought 
to  have  been  withdrawn  with  the  compensation  clause. 

In  order  to  guard  the  purchaser  against  loss,  it  was  at 
first  suggested  that  the  purchase-money  might  be  depo- 
sited in  the  hands  of  a  third  person  until  the  deed  was 
registered.  But  might  not  the  purchaser  or  seller  disap- 
prove of  this  ?     It  would  lead  to  great  evils.     The  money 

(*238) 


UNREGISTERED  DEEDS,  &c.  275 

might  be  lost  by  the  dishonesty  or  failure  of  the  deposita- 
ry. The  provisions  of  the  act  would  have  exposed  every 
man's  purchase  or  mortgage  to  such  imminent  hazard, 
that  hov^'ever  remote  might  be  his  residence  from  the 
metropolis,  his  only  safety  would  be  in  completing  his 
purchase  on  the  threshold  of  the  metropolitan  office,  and 
then  rushing  into  it  with  the  deed  for  registration. 
Country  solicitors  would  not  allow  all  the  business  to  be 
transacted  by  London  solicitors.  They  would  frequently 
send  their  clerks  to  town,  or  go  themselves,  to  make 
the  searches.  The  caveat  which  the  act  authorized  to 
be  entered  in  certain  cases,  only  exhibited  the  danger 
of  the  system.  The  caution  could  not  have  been  given 
in  many  cases,  and  in  all  would  have  been  so  troublesome 
and  costly,  such  a  clog  upon  contracts,  that  few  would 
have  had  recourse  to  it  unless  it  had  become  an  ordinary 
mode  of  inflaming  the  agent's  bill.  Upon  a  registry 
there  may,  in  every  case,  be  a  race,  and  the  race  should 
be  to  the  swift.  A  man  should  not  be  allowed  to  give 
perfection  to  an  imperfect  transaction  by  a  caveat  which 
\^  ould  operate  against  a  prior  perfect  instrument. 

But  whatever  might  have  been  the  diligence  of  the 
purchaser  or  incumbrancer,  yet  he  might  lose  his  estate 
or  money  through  the  carelessness,  dishonesty  or  want  of 
skill  in  the  officers  of  the  establishment.  The  system  was 
a  new  one,  and  however  excellent,  it  might  have  been 
found  difficult  to  follow  it  literally,  and  the  slightest 
(*)blunder  might  have  defeated  the  title,  or  the  smallest 
delay  might  have  proved  fatal.  There  was  little  prospect 
of  a  man's  recovering  damages  for  any  loss  occasioned 
by  the  neglect,  ignorance  or  misconduct  of  the  officers. 
For  the  registrar-general  was  empowered  to  require  such 
statements  from  time  to  time  as  he  should  think  proper, 
to  be  sent  with  the  assurances  for  regulating  the  entries, 
and  in  case  no  statement  should  have  been  sent  conform- 
ably with  such  order,  the   purchaser  or  incumbrancer  was 

(*239) 


276  ^^  PROTECTION  FROM  UNREGISTERED  DEEDS,  &c. 

to  be  without  remedy  on  account  of  any  omission,  delay 
or  error  in  the  entry.  The  remedy  would  practically 
have  been  .nominal.  The  purchaser's  own  solicitor  was 
improperly  exonerated,  if  he  directed  an  office  search,  and 
obtained  a  certificate  of  the  result.  If  any  loss  was 
sustained  by  any  omission,  mistake  or  misfeasance  of  any 
officer,  and  the  pu7xhaser  could  maintain  an  action,  the 
damages  were  to  be  paid  out  of  the  consolidated  fund. 
Some  Chancellor  of  the  Exchequer  would  have  started  at 
an  item  of  100,000/.  for  damages,  occasioned  by  a  clerk's 
writing  "  Compton"  for  "  Crompton"  ! 

The  plan  would  probably  have  given  great  counte- 
nance for  a  time  to  forged  deeds.  In  the  many  instances 
in  which  confidential  agents  have  forged  deeds,  they  have 
always  given  sufficient  publicity  to  them.  The  registry 
of  a  forged  deed  would  not  be  more  likely  to  bring  it  to 
the  knowledge  of  the  person  whose  name  was  forged,  than 
the  delivery  of  the  deed  to  a  purchaser  or  mortgagee  ; 
but  the  registry  of  such  a  deed  would  nevertheless  induce 
others  to  place  more  confidence  in  it.  The  plan  did  not 
require  deeds  to  be  authenticated  before  they  were  reg- 
istered. In  that  instance  also,  the  existing  rule  was  de- 
parted from. 

It  was  no  part  of  the  plan  to  improve  men's  present 
titles;  they  were  to  remain  subject  to  their  original  infir- 
mities. The  expense  of  erecting  a  building — of  course 
(*)a  national  ornament — and  of  the  establishment,  would 
have  been  large,  but  still  such  a  m.easure  should  not  have 
been  made  a  source  of  revenue,  or  in  other  words,  of 
taxation,  and  therefore,  if  ever  the  plan  be  adopted,  pro- 
vision should  be  made  for  reducing  the  fees  to  a  level 
with  the  expenditure.  The  act  exempted  memorials  from 
stamp  duty.  But  as  has  already  been  remarked,  the 
temptation  would  be  too  great  for  a  Chancellor  of  the 
Exchequer  long  to  resist ;  they  would  inevitably  be  sub- 
jected to  a  heavy  duty,  and  thus  the  landed  interest  would 

(^^240) 


OF  PROTECTION  FROM  ACTS  OF  PAPISTRY. 


277 


be  taxed  for  a  security  which  the  act  would  in  vaiu 
affect  to  afford  to  them.  For  these  reasons,  the  writer 
has  always  been  averse  to  the  extension  of  the  system 
of  registration  ;  and  an  examination  of  the  proposed 
measure,  after  all  the  amendments  it  received,  has  satisfi- 
ed him  that  its  certain  operation,  if  it  had  passed  into  a 
law,  would  have  been  to  create  great  expense,  and  cause 
much  vexation ;  but  that  it  was  more  than  doubtful, 
whether  to  the  general  class  of  honest  purchasers,  the 
loss  it  would  occasion  would  not  have  preponderated 
over  the  profit. 

The  act  has  been  framed  with  ability,  and  the  scheme 
of  registration  is  a  great  improvement  upon  its  predeces- 
sors ;  but  the  fault  is  in  the  system,  which  never  can 
afford  the  security  which  it  affects  to  give  whilst  it  intro- 
duces dangers  and  difficulties  that  no  talents  can  obviate. 
The  examples  aff()rded  by  the  registers  of  Ireland  and 
Scotland,  offer  no  temptation  to  Enland  to  imitate  them. 
In  a  few  years,  a  general  register  would  be  destroyed  by 
its  own  enormous  weight. 


(*)SECTrON  VI. 

Of  Protection  from  Acts  of  Papistry. 


By  the  11  fc  12  Will.  3,  c.  4,  it  was  enacted,  that 
papists  who  should  not,  within  six  months  after  attaining 
eighteen,  take  the  oaths  and  subscribe  the  declaration 
therein  -mentioned,  should,  but  as  to  himself  or  herself 
only,  be  incapable  to  take  by  descent,  devise  or  limitation  ; 
and  the  estate  should  be  enjoyed  by  the  next  of  kin,  being 

(*241) 


278  ^^  PROTECTION  FROM 

a  piotestant,  during  the  life,  or  until  the  conformity  of 
such  papist.  And  by  this  act  papists  were  rendered  in- 
capable of  purchasing  lands,  either  in  their  own  names, 
or  in  the  names  of  trustees ;  and  all  estates  made  to  them 
were  declared  to  be  utterly  void  and  of  none  effect,  to  all 
intents,  constructions  and  purposes  whatsoever. 

To  remedy  the  inconveniences  arising  from  this  provi- 
sion, it  was  by  a  modern  statute(c)  enacted,  that  no  sale 
for  a  full  and  valuable  consideration  by  a  papist,  of  any 
lands,  or  of  any  interest  therein  theretofore  made,  or 
thereafter  to  be  made,  to  a  protestant  purchaser,  should 
be  impeached  by  reason  of  any  disability  of  the  vendor, 
or  of  any  persons  under  whom  he  claimed,  in  consequence 
of  the  11  &  12  Will.  3(d)  ;  unless  the  person  taking  ad- 
vantage^ of  such  disability  should  have  recovered  before 
the  sale,  or  given  notice  of  his  claim  to  the  purchaser,  or 
before  the  contract  for  sale  should  have  entered  his  claim 
at  the  quarter-sessions,  and  bona  fide  pursued  his  remedy. 
But  it  was  expressly  provided,  that  the  clause  in  11  & 
(*)12  Will.  3,  disabling  papists  from  purchasing,  should 
remain  in  full  force. 

In  the  case  of  Fairclaim  v.  Newland(e),  the  Court  of 
King's  Bench  expressed  an  extra-judicial  opinion,  that 
the  statute  of  Geo.  1.  did  not  in  every  case  authorize  a 
sale  by  a  papist  to  a  protestant  purchaser.  They  consi- 
dered the  statute  of  Will.  3.  as  having  different  pro- 
visions for  persons  of  different  ages,  viz.  as  to  those 
under  eighteen,  estates  limited  to  them  were  vested  for 
the  benefit  of  their  posterity,  and  these  were  intended  to 
he  able  to  convey  to  protestants;  but  as  to  others  above 
eighteen,  they  are  absolutely  disabled  from  taking  any 
estate  by  purchase,  and  the  statute  of  George  never 
intended  to  enable  them  to  convey  what  they  had  not. 

(c)  3  Geo.  1,  c.  18.     See  29  Geo.  3,  c.  36,  s.  4. 

(d)  Vide  supra,  vol.  2,  p.  108. 

(e)  8  Vin.  Abr.  73,  pi.  4. 
(*242) 


ACTS  OF  PAPISTRY.  27Q 

In  a  case  before  Lord  Hardwicke,  two  years  afterwards, 
it  was  insisted  that  the  proviso  in  the  act  of  George 
restrained  the  enacting  part  to  a  statute  of  James  recited 
in  the  act  of  George  ;  and  that  the  statute  of  William,  by 
the  express  words  of  the  proviso,  remained  in  full  force. 
Lord  Hardwicke,  however,  said  "that  the  statute  of 
William  was  to  be  sure  made  to  prevent  papists  from 
acquiring  new  estates.  Then  came  the  statute  of 
Geo.  .1,  and  this  statute,  and  the  proviso  in  it,  had  a 
seeming  repugnancy,  and  he  would  take  notice,  that  the 
statute  in  this  respect  had  always  been  doubtful ;  some 
people  had  thought  that  the  proviso  restrained  the  statute, 
and  it  was  certainly  a  very  odd  provisp.  But  he  thought 
the  meaning  of  the  j)roviso  was  only  ex  ubundanti  cautela 
against  papists,  and  was  not  designed  to  affect  pur- 
chasers ;  for  if  it  were  otherwise,  the  security  to  protes- 
tant  purchasers,  under  the  statute,  would  be  a  most 
doubtful  security."  And  he  considered  the  enacting  part 
of  the  statutes  as  in  full  force  for  the  benefit  of  a  protes- 
tant  (*)purchaser,  although  it  was  not  necessary  to  decide 
the  point(y). 

'  Mr.  Wilbraham  was  one  of  the  counsel  for  the  plain- 
tiff in  the  last  case,  and  in  an  opinion  given  by  him  on 
this  point  a  few  years  afterwards,  he  thought  that  the  act 
of  Geo.  \.  authorized  a  sale  by  a  papist  purchaser  to  a 
protestant  purchaser,  and  was  not  in  that  respect  con- 
trolled by  the  proviso.  He  stated,  that  as  the  opinion  of 
the  eminent  conveyancers,  from  the  time  of  passing  the 
act  in  1717,  till  about  the  year  1740,  had  been,  that 
popish  purchasers  might  sell  ;  and  as  it  was  the  opinion  of 
the  present  Chancellor,  and  several  eminent  lawyers,  they 
might  sell,  he  was  of  the  same  opinion,  though  the  Court 
of  King's  Bench   seemed  to  be  of  a  contrary  opinion  in 

(/)  Wildigos  V.  Keeble,  8  Vin.  Abr.  73,  pi.  5.  See  S.  C.  cited,  1 
Atk.  635  ;  2  Yes.  392,  nom.   Wildgoose  v.  Moore. 

(*243) 


OOQ  OF  PROTECTION  FROM 

atrial  at  bar,  in  the  year  1741,  between  Fairchild  and 
Nevvland(o-).  Indeed  it  seems  surprising  that  any  doubt 
should  have  arisen  on  this  point,  as  the  act  was  passed 
for  the  express  purpose  of  encouraging  Roman  catholics 
to  sell  their  estates  to  protestants,  however  they  might 
have  acquired  them  ;  and  the  Legislature  was  only 
anxious  that  Roman  catholics  should  not  derive  any  power 
from  the  act  to  purchase  and  hold  estates.  A  different 
construction  would  deprive  the  act  of  nearly  all  operation. 
It  has  now,  however,  long  been  thought  the  better 
opinion,  that  the  proviso  does  not  defeat  the  enacting 
part  in  favor  of  protestant  purchasers,  and  on  the  autho- 
rity of  it  many  purchases  of  considerable  consequence 
have  been  made(A-). 

The  act  requires  the  sale  to  be  "  for  a  full  and  valu- 
able (*)consideration  ;"  but  the  purchase  will  be  protected 
bv  the  statute,  although  a  year's  purchase  more  might 
have  been  obtained  for  the  estate,  the  consideration  being 
only  evidence  of  the  reality  of  the  purchase(i). 

And  although  a  purchase  from  a  papist  was  made 
under  suspicious  circumstances,  yet  if  the  purchaser  has 
paid  any  part  of  the  purchase-money,  he  may  plead 
the  statute  of  Will.  3,  in  bar  to  a  bill  for  a  discovery 
from  him,  whether  the  vendor  was  a  papist ;  for  by  his 
discovery  the  estate  might  perhaps  be  recovered  at  law, 
and  then  he  would  lose  the  money  he  had  paid(A:). 

On  this  statute  it  remains  to  observe,  that  a  purchaser 
having  notice  of  the  vendor  being  a  papist,  and  under 

(g-)  2  Vol.  Cas.  and  Opin.  60 ;  and  see  several  other  opinions,  ih. 
54  to  71. 

{h)  See  Mr.  Butlers's  learned  note  to  Co.  Litt.  391,  a,  s.  3.  See  also 
43  Geo.  3,  c.  30  ;  and  see  O'Fallon  v.  Dillon,  2  Scho.  &  Lef.  13,  for 
the  construction  of  popery  acts. 

(t)  Wildgoosev.  Moore,  1  Atk.  535  ;  2  Ves.  392,  cited  ;  vide  supra; 
2  Atk.  210  :   Barnard  Rep.  Cha.  455  ;   Smith  v.  Read,  1  Atk.  526. 

{k)  Harrison  v.  Southcote,  1  Atk.  528  ;  2  Ves.  389. 

(*244) 


OF  PROTECTION  FROAl  DEFECTS  IN  RECOVERIES. 


281 


a  disability  to  hold,  is  immaterial,  unless  it  was  given 
to  him  by  the  person  taking  advantage  of  the  disability 
according  to  the  act  of  Geo.  1. 

I  have  allowed  this  section  to  remain,  as  it  is  short,  and 
possibly  a  knowledge  of  its  contents  may  be  required ; 
but  by  the  10  Geo.  4,  c.  7,  s.  23,  it  is  enacted,  that  after 
the  passing  of  that  act  no  oath  or  oaths  shall  be  tendered 
to  or  required  to  be  taken  by  his  Majesty's  subjects  pro- 
fessing the  Roman  catholic  religion,  for  enabling  them  to 
hold  or  enjoy  any  real  or.  personal  property,  other  than 
such  as  may  by  law  be  tendered  to  and  required  to  be 
taken  by  his  Majesty's  other  subjects. 

(*)SECTION    VIK 
Of  Protection  from  Defects  in  Recoveries, 


Here  may  be  mentioned  the  4th  section  of  the  14  Geo. 
2,  c.  20,  for  which  the  Profession   is  indebted  to  the   late 
Mr.    Pigot ;   whereby,  after  reciting,  that   by  the  default 
or  neglect   of  persons  employed  in  suffering   common  re- 
coveries, it   has  happened,  and  may  happen,  that  such  re- 
coveries are  not  entered  on   record,   whereby   purchasers 
for  a  valuable  consideration  may  be  defeated  of  their  just 
rights  ;  it  is  enacted,   "  that  where  any  person  or  persons 
hath  or  have  purchased,  or  shall  purchase  for  a  valuable 
consideration,   any  estate  or  estates,  in  lands,  tenements 
or  hereditaments,  whereof  a  recovery  or  recoveries  is,  are 
or  were  necessary  to  be  suffered,  in  order  to  complete  the 
title,  such   person  and   persons,  and   all   claiming   under 
him,  her  or  them,  hamng  been  inpossession  of  the  purchased 
estate  or  estates  from  the  time  of  such  purchase,  shall   and 

VOL.    II.  36  C*245; 


282 


OF  PROTECTION  FROM 


may,  after  the  end  of  twenty  years  from  the  time  of  such 
purchase,  produce  in  evidence  the  deed  or  deeds  making 
a  tenant  to  the  writ  or  writs  of  entry,  or  other  writs  for 
suffering  a  common  recovery  or  recoveries ;  and  declar- 
ing the  uses  of  a  recovery  or  recoveries  ;  and  the  deed 
or  deeds  so  produced  (the  execution  thereof  being  duly 
proved)  shall,  in  all  courts  of  law  and  equity,  be  deemed 
and  taken  as  a  good  and  suf6cient  evidence  for  such 
purchaser  and  purchasers,  and  those  claiming  under  him, 
her  or  them,  that  such  recovery  or  recoveries  was  or  were 
duly  suffered  and  perfected,  according  to  the  purport  of 
such  deed  or  deeds,  in  case  no  record  can  be  found  of 
such  recovery  or  recoveries,  or  the  same  shall  appear  not 
to  be  regularly  entered  on  record  :  provided  always,  that 
the  person  or  persons  making  such  deed  or  deeds  as 
(*)aforesaid,  and  declaring  the  uses  of  a  common  recovery 
or  recoveries,  had  a  sufficient  estate  and  power  to  make 
a  tenant  to  such  writ  or  writs  as  aforesaid,  and  to  suffer 
such  common  recovery  or  recoveries." 

This  clause  will  still  operate  upon  existing  titles  ;  but 
its  further  operation  is  now  at  an  end,  for  by  the  3  & 
4  Will.  4,  c.  74(/),  fines  and  recoveries  are  abolished. 
This  last  act  contains  several  provisions  in  favor  of 
purchasers.  By  s.  38,  it  is  enacted,  that  when  a  tenant 
in  tail  of  lands  under  a  settlement  shall  have  already 
created,  or  shall  hereafter  create  in  such  lands,  or  any  of 
them,  a  voidable  estate  in  favor  of  a  purchaser  for  valua- 
ble consideration,  and  shall  afterwards  under  that  act,  by 
any  assurance  other  than  a  lease  not  requiring  enrolment, 
make  a  disposition  of  the  lands  in  which  such  voidable 
estate  shall  be  created,  or  any  of  them,  such  disposition, 
whatever  its  object  may  be,  and  whatever  may  be  the  ex- 
tent of  the  estate  intended  to  be  thereby  created,  shall, 
if  made  by  the  tenant  in  tail  with  the  consent  of  the  pro- 

(/)   Supra,  vol.  1.  p.  380. 
(*246) 


DEFECTS  IN  RECOVERIES. 


283 


tector,  if  any,  of  the  settlement,  or  by  the  tenant  in  tail 
alone,  if  there  shall  be  no  such  protector,  have  the  effect 
of  confirming  such  voidable  estate  in  the  lands  thereby 
disposed  of  to  its  full  extent,  as  against  all  persons  ex- 
cept those  whose  rights  are  saved  by  the  act ;  but  if  at 
the  time  of  making  the  disposition  there  shall  be  a  pro- 
tector of  the  settlement,  and  sucn  protector  shall  not  con- 
sent to  the  disposition,  and  the  tenant  in  tail  shall  not 
without  such  consent  be  capable  under  this  act  of  con- 
firming the  voidable  estate  to  its  full  extent,  then  such 
disposition  shall  have  the  effect  of  confirming  such  void- 
able estate,  so  far  as  such  tenant  in  tail  would  then  be 
capable  under  the  act  oi'  confirming  the  same  without 
such  consent,  provided  that  if  such  disposition  shall  be 
made  to  a  purchaser  for  valuable  consideration,  who  shall 
(*)not  have  express  notice  of  the  voidable  estate,  then  the 
voidable  estate  shall  not  be  confirmed  as  against  such 
purchaser  and  the  persons  claiming  under  him. 

And  by  s.  6%  it  is  enacted,  that  where  an  actual  tenant 
in  tail  of  lands  of  any  tenure,  or  a  tenant  in  tail  entitled 
to  a  base  fee  in  lands  of  any  tenure,  shall  have  already 
created,  or  shall  hereafter  create  in  such  lands,  or  any  of 
them,  a  voidable  estate  in  favor  of  a  purchaser  for 
valuable  consideration,  and  such  actual  tenant  in  tail,  or 
tenant  in  tail  so  entitled  as  aforesaid,  shall  be  adjudged 
a  bankrupt  under  a  fiat,  and  the  commissioner  acting 
in  the  execution  of  such  fiat  shall  make  any  disposition, 
under  the  act,  of  the  lands  in  which  such  voidable  estate 
shall  be  created,  or  any  of  them,  then,  if  there  shall  be 
no  protector  of  the  settlement  by  which  the  estate  tail  of 
the  actual  tenant  in  tail,  or  the  estate  tail  converted  into  a 
base  fee,  as  the  case  may  be,  was  created,  or  being  such 
protector,  he  shall  consent  to  the  disposition  by  such  com- 
missioner as  aforesaid,  whether  such  commissioner  may 
have  made  under   the  act  a  previous  disposition  of  such 

(*247) 


984  ^^  PROTECTION  FROM  DEFECTS  IS  RECOVERIES. 

lands  or  not,  or  whether  a  prior  sale  or  conveyance  of  the 
same  lands  shall  have  been  made  or  not  under  the  acts  of 
6  Geo.  4.  and  the  1  &  2  Will.  4,  or  either  of  them,  or  any 
other  acts  hereafter  to  be  passed  concerning  bankrupts,  the 
disposition  by  such  commissioner  shall  have  the  effect 
of  confirming  such  voidable  estate  in  the  lands  thereby 
disposed  of  to  its  full  extent,  as  against  all  persons  except 
those  whose  rights  are  saved  by  that  act ;  and  if  at  the 
time  of  the  disposition  by  such  commissioner,  in  the  case 
of  an  actual  tenant  in  tail,  there  shall  be  a  protector,  and 
such  protector  shall  not  consent  to  the  disposition  by 
such  commissioner,  and  such  actual  tenant  in  tail,  if  he 
had  not  been  adjudged  a  bankrupt,  would  not  without 
such  consent  have  been  capable  under  the  act  of  con- 
firming the  voidable  estate  to  its  full  extent,  then  and  in 
(*)such  case  such  disposition  shall  have  the  effect  of  con- 
firming such  voidable  estate,  so  far  as  such  actual  tenant 
in  tail,  if  he  had  not  been  adjudged  a  bankrupt,  could  at 
the  time  of  such  disposition  have  been  capable  under  the 
act  of  confirming  the  same  without  such  consent ;  and  if 
at  any  time  after  the  disposition  of  such  lands  by  such 
commissioner,  and  while  only  a  base  fee  shall  be  sub- 
sisting in  such  lands,  there  shall  cease  to  be  a  protector 
of  such  settlement,  and  such  protector  shall  not  have 
consented  to  the  disposition  by  such  commissioner,  then 
such  voidable  estate,  so  far  as  the  same  may  not  have 
been  previously  confirmed,  shall  be  confirmed  to  its  full 
extent,  as  against  all  persons  except  those  whose  rights 
are  saved  by  the  act ;  provided  that  if  the  disposition  by 
any  such  commissioner  as  aforesaid  shall  be  made  to 
a  purchaser  for  valuable  consideration,  who  shall  not 
have  express  notice  of  the  voidable  estate,  then  the 
voidable  estate  shall  not  be  confirmed  against  such  pur- 
chaser and  the  persons  claiming  under  him. 

But  by  s.  47  it  is  enacted,  thai  m  cases  of  dispositions 


OF  PROTECTION  FROM  DEFECTS  IN  RECOVERIES.  285 

of  lands  under  the  act  by  tenants  in  tail  thereof,  and 
also  in  cases  of  consents  by  ^protectors  of  settlements  to 
dispositions  of  lands  under  this  act,  by  tenants  in  tail 
thereof,  the  jurisdiction  of  courts  of  equity  shall  be 
altogether  excluded,  either  on  the  behalf  of  a  person 
claimins:  for  a  valuable  or  meritorious  consideration  or 
not,  in  regard  to  the  specific  performance  of  contracts 
and  the  supplying  of  defects  in  the  execution  either  of 
the  powers  of  disposition  given  by  the  act  to  tenants  in 
tail,  or  of  the  powers  of  consent  given  by  the  act  to 
protectors  of  settlements,  and  the  supplying  under  any 
circumstances  of  the  want  of  execution  of  such  powers  of 
disposition  and  consent  respectively,  and  in  regard  to 
giving  effect  in  any  other  manner  to  any  act  or  deed  by 
a  tenant  in  tail,  or  protector  of  a  settlement,  which  in 
(*)a  court  of  law  would  not  be  an  effectual  disposition  or 
consent  under  the  Act ;  and  that  no  disposition  of  lands 
under  the  act  by  a  tenant  in  tail  thereof  in  equity,  and  no 
consent  by  a  protector  of  a  settlement  to  a  disposition  of 
lands  under  the  act  by  a  tenant  in  tail  thereof  in  equity, 
shall  be  of  any  force  unless  such  disposition  or  consent 
w^ould  in  case  of  an  estate  tail  at  law  be  an  effectual  dis- 
position or  consent  under  the  act  in  a  court  of  law. 

SECTION    VIII. 
Of  Protection  from  Defects  in  Sales  for  Land-  Tax, 


We  may  here  notice  the  12th  section  of  the  54  Geo.  3, 
c.  173,  vvhereby,  after  reciting  that  for  the  purpose  of  re- 
deeming land-tax,  or  of  raising  money  for  reimbursing  the 

(*249) 


236  ^^  PROTECTION  FROM 

Stock  or  money  previously  transferred  or  paid  as  the  con- 
sideration for  redeeming  land-tax  charged  on  lands  and 
other  hereditaments  belonging  to  persons  for  the  time 
being  seised  or  possessed,  or  entitled  beneficially  in  pos- 
session to  the  rents  and  profits  of,  but  not  having  the  ab- 
solute estate  or  interest  in,  such  lands  or  other  heredita- 
ments, or  for  some  other  purposes  for  which  lands  and 
hereditaments  are  authorized  to  be  sold  by  such  persons 
under  the  powers  and  provisions  of  the  said  act  of 
the  42d  of  Geo.  3,  or  of  some  subsequent  act  relating 
to  the  redemption  and  sale  of  the  land-tax,  some  sales  of 
lands  and  other  hereditaments  may  have  been  or  may  be 
made  by  persons  so  seised  or  entitled,  not  strictly  autho- 
rized to  sell  by  such  powers  and  provisions  without  some 
further  assurance  in  the  law,  or  by  reason  that  all  the 
lands  and  other  hereditaments  of  or  to  which  the  persons 
making  such  sales  were  respectively  so  seised  or  entitled, 
(*)did  not  at  the  times  of  such  sales  stand  limited  and 
settled,  and  subject  to  or  for  the  same  uses,  trusts,  intents 
and  purposes,  or  by  reason  that  a  greater  quantity  of  an 
estate  has  been  sold  than  may  have  been  necessary 
to  be  sold  for  the  authorized  purposes,  or  by  reason  of 
some  other  mistake  or  inadvertence ;  It  is  enacted,  that 
all  sales  so  made  as  aforesaid,  and  all  conveyances  exe- 
cuted of  the  lands  or  other  hereditaments  so  sold,  pro- 
vided the  same  have  been  respectively  made  and  executed 
bona  fide  and  for  valuable  consideration,  and  shall  appear 
to  have  been  made  and  executed  under  the  authority  and 
with  the  consent  and  approbation  of  the  commissioners,  as 
required  by  the  said  acts  or  any  of  them,  in  cases  of  sales 
under  the  powers  of  the  said  acts,  shall  be  and  the  same 
are  thereby  ratified  and  confirmed  from  the  respective 
periods  at  which  such  sales  and  conveyances  were  res- 
pectively made  and  executed,  and  shall  be  from  such 
respective  periods  as  valid  and  effectual  •  in  the  law 
as  if  such  sales  and  conveyances    had    been  made  and 

(*250) 


DEFECTS  IN  SALES  FOR  LAND-TAX. 


287 


executed  in  strict  conformity  to  the  powers  and  pro- 
visions under  which  the  same  were  intended  to  have 
effect,  any  thing  in  the  said  act  of  the  42d  of  Geo.  3,  or 
of  any  such  subsequent  act,  as  aforesaid,  to  the  contrary 
notwithstanding.  But  this  provision  is  qualified  by  a 
proviso,  that  every  person  injured  or  prejudiced  by  any 
sales  thereby  confirmed  shall  be  entitled  to  relief,  either 
by  the  decree  of  a  court  of  equity  on  a  bill  filed,  or  by  a 
summary  application  to  a  court  of  equity  by  petition,  and 
by  the  usual  proceedings  before  the  Master  or  other 
proper  officer  of  the  court,  on  such  petition,  and  an  order 
thereupon  ;  and  shall,  under  such  decree  or  order,  have 
an  annual  rent-charge  to  such  an  amount,  and  for  and 
during  such  term  or  estate,  and  charged  upon  such  lands 
or  other  hereditaments  as  such-court  shall  order  or  direct; 
and  the  said  court  shall  have  full  power  to  adjust  the 
(*)proportion  and  terms  of  such  annual  rent-charge  be- 
tween different  claimants,  and  to  direct  the  settlement  of 
such  annual  rent-charge  in  such  manner  as  the  said  court 
shall,  under  the  circumstances  of  the  case,  in  its  discre- 
tion, think  proper  ;  and  shall  also  have  power  to  make 
such  order  respecting  the  costs  of  the  parties  as  the  said 
court  shall  think  fit. 

By  the  57th  of  Geo.  3,  c.  100,  s.  22,  after  reciting  that 
it  a[)peared  that  some  deeds  of  sale,  which  previous  to 
the  revocation  of  the  commissions  theretofore  granted 
under  the  royal  sign-manual,  enabling  the  persons  therein 
named  to  be  commissioners  for  the  redemption  and  sale 
of  the  land-tax,  were  intended  to  have  been  executed  by 
and  under  the  authority  of  the  persons  named  in  such 
commissions,  had  been  executed  by  the  tenants  for  life, 
or  other  persons  having  authority,  with  the  consent  of 
such  commissioners  to  make  such  sales,  but  had  not  been 
executed  by  such  commissioners,  and  difficulties  had  in 
some  instances  arisen  as  to  the  mode  of  confirmina:  titles 
under  such  imperfect  conveyances,  and  that  it  was  expe- 

(*251) 


288  °^  PROTECTION  FROM 

client  that  a  discretionary  power  should  be  given  to  tiie 
commissioners  for  the  affairs  of  taxes  of  confirming  the 
same,  and  also  any  deed  of  mortgage  or  grant  that  might 
for  the  same  cause  be  found  imperfect,  it  was  therefore 
enacted,  that  upon  production  to  the  commissioners  for 
the  affairs  of  taxes,  or  any  two  of  them,  of  any  deeds  of 
sale,  mortgage  or  grant,  that  had  been  executed  by  any 
tenant  or  tenants  for  life,  or  other  person  or  persons 
having  authority  under  the  land-tax  redemption-acts  for 
the  time  being,  to  make  any  such  sale,  mortgage  or 
grant,  with  the  consent  and  approbation  of  two  or  more 
of  the  commissioners  for  the  time  being,  appointed  by 
and  under  the  royal  sign-manual,  but  which  deeds  of 
sale,  mortgage  or  grant  had  not  been  executed  by  the 
commissioners  whose  consent  was  necessary  to  the  vali- 
dity (*)thereof  respectively,  it  should  be  lawful  for  the  said 
commissioners  for  the  affairs  of  taxes,  or  any  two  of  them, 
on  their  being  satisfied  that  such  deeds  of  sale,  mortgage 
or  grant  would  have  been  authorized  and  available  under 
the  powers  and  provisions  of  the  said  acts,  or  some  of 
them,  if  two  of  the  commissioners  for  the  time  being, 
acting  by  virtue  of  the  royal  sign-manual,  had  been  par- 
ties to  and  executed  the  same,  to  sign  and  seal  such  deeds 
of  sale,  mortgage  and  grant,  and  to  cause  such  indorse- 
ments to  be  made  on  such  deeds  respectively,  as  the  said 
commissioners  for  the  affairs  of  taxes  might,  under  the 
circumstances  of  the  case,  think  necessary  or  proper  for 
showing  their  assent  to  and  confirmation  of  such  sales, 
mortgages  or  grants  ;  and  all  such  deeds  of  sale,  mortgage 
or  grant,  which  should  be  so  signed  and  sealed  by  the  said 
commissioners  for  the  affairs  of  taxes,  or  any  two  of  them, 
and  upon  which  any  such  indorsement  should  be  made, 
should  be  and  the  same  were  thereby  respectively  ratified 
and  confirmed  from  the  respective  periods  at  which  such 
sales,  mortgages  or  grants  were  respectively  intended  to 
take  effect,  and  the  same  should  be  from  such  respective 

C*252) 


DEFECTS  IN  SALES  OF  LAND-TAX.  ooq 

periods  as  valid  and  effectual  in  the  law,  and  be  consi- 
dered as  conferring  upon  the  respective  purchasers  or 
mortgagees  of  the  lands  and  hereditaments  therein  respec- 
tively comprised,  or  upon  the  respective  grantees  of  any 
rent-charges,  and  all  persons  claiming  by,  from,  through, 
under  or  in  trust  for  them  respectively,  as  good  a  title  to 
the  lands  or  hereditaments  sold  or  mortgaged,  or  to  the 
rent-charges  granted,  as  if  two  of  the  commissioners  for 
the  time  being,  acting  under  the  royal  sign-manual,  and 
who  would  have  been  competent  under  the  acts  for  the 
time  being  to  consent  to  such  sales,  mortgages  or  grants 
respectively,  had  approved  of  and  consented  thereto 
respectively,  by  signing  and  sealing  such  deeds  respec- 
tively ;  and  no  deeds  of  sale,  mortgage  or  grant,  so  to  be 
(*)confirmed,  should  require  any  stamp-duty  by  reason  of 
any  execution  thereof  by  the  commissioners  for  the  affairs 
of  taxes,  or  by  reason  of  any  such  indorsement  to  be  made 
thereon,  as  aforesaid. 

And  it  was  further  enacted(m),  that  where  any  con- 
tract should  have  been  entered  into  for  the  redemption  of 
any  land-tax,  and  any  contract  should  have  been  entered 
into  for  sale  of  any  lands  or  other  hereditaments  for  the 
purpose  of  raising  money  to  complete  the  contract  for 
the  redemption  of  such  land-tax,  and  it  should  appear 
that  such  contract  for  sale  could  not,  under  the  powers 
and  authorities  of  the  land-tax  redemption-acts,  or  any  of 
them,  or  by  reason  of  some  defect  in  the  title  to  the  lands 
or  other  hereditaments  comprised  in  such  contracts  for 
sale,  be  completed,  it  should  be  lawful  for  the  commis- 
sioners for  the  affairs  of  taxes,  or  any  two  of  them,  to 
rescind  and  declare  void  such  contract  for  redemption  of 
land-tax,  and  thereupon  it  should  be  lawful  for  the  said 
coiDmissioners  to  make  such  orders,  and  give  such  direc- 
tions, as  they  should   think   proper  for  the  re-transfer  of 

(m)   Sec.  23. 
VOL.   II.  37  (*253) 


290 


OF  PROTECTION  FROM 


any  stock,  or  the  re-pajment  of  any  money  that  miglit 
have  been  previously  transferred  or  paid  in  pursuance  of 
such  rescinded  contract  ;  and  the  governor  and  company 
of  the  Bank  of  England,  the  commissioners  for  the  reduc- 
tion of  the  national  debt,  and  the  several  receivers-general 
in  England  and  collectors  in  Scotland,  to  whom  the  same 
might  respectively  appertain,  should,  upon  a  certificate  of 
such  contract  being  so  rescinded,  make,  and  they  are 
hereby  respectively  required  to  make,  such  re-transfer  or 
re-payment  accordingly. 

And  after  reciting  that  it  was  expedient  to  make  pro- 
vision for  the  enrolment  and  register  of  deeds,  which  had 
not    been    duly   enrolled   or   registered   pursuant    to    the 
directions  of  the  several   acts   passed   relating   to  the  re- 
demption (*)of  the   land-tax,  it  was  enacted(/z),  that   all 
deeds  required  by  the  said   acts,  or  any  of  them,  to  be 
enrolled   or  registered,  should  be  valid   and   effectual,  al- 
though the   same   should   not  have  been  or  should  not  be 
enrolled   or  registered   within  the  periods  prescribed   by 
the  said  acts  respectively,  provided  the  same  should   have 
been  enrolled  or  registered   before  the  passing  of  the  said 
act,  or  should   be   enrolled   or   registered   within   twelve 
calendar  months  after  the   passing   thereof;  and  that  in 
any  case  such  deeds  should  not   be  enrolled  or  registered 
within  twelve  calendar   months  after   the  passing   of  the 
said  act,  or  any  deeds   thereafter  to   be  executed   under 
the  powers  of  the  said  acts,  or   any  of  them,  or  of  this 
present  act,  should   not   be  enrolled  or   registered   within 
six  calendar   months  after   the  execution   thereof  respec- 
tively, it  should  be   lawful  for  any  two  or   more   of  the 
commissioners  for  the  time  being  for  the  redemption   and 
sale  of  the   land-tax,  if  they  should  think   fit,  upon   the 
production  of  any  such   deeds,  to  order   the   same  to  be 

(n)   Sec.  24. 
(*254) 


I 


DEFECTS  IN  SALES  FOR  LAND-TAX.  291 

enrolled  or  registered  ;  and  that  all  deeds  to  be  enrolled 
or  registered  pursuant  to  any  such  order  should  be  as 
valid  and  effectual  as  if  the  same  had  been  enrolled  or 
registered  within  the  periods  prescribed  by  the  said  acts, 
or  by  this  present  act :  and  that  all  conveyances  made 
subsequent  to  any  deeds  already  enrolled  or  registered, 
or  to  be  enrolled  or  registered  under  this  act,  and  de- 
pending in  point  of  title  on  such  deeds,  should  be  of 
the  same  effect  as  if  such  deeds  had  been  enrolled  or 
registered  on  the  day  of  the  date  thereof:  nevertheless, 
without  prejudice  to  the  validity  of  any  assurances  there- 
tofore made,  or  thereafter  to  be  made,  to  correct  or  supply 
any  defects  arising  from  the  want  of  such  enrolment  or 
registry. 

And  after  reciting  that  for  the  purpose  of  redeeming  or 
(*)purchasing  land-tax,  or  of  raising  money  for  reimbursing 
the^  stock  or  money  previously  transferred  or  paid  as  the 
consideration  for  redeeming  land-tax,  or  "for  purchasing 
assignments  of  land-tax,  or  for  some  other  purposes  for 
which  lands  and  hereditaments  were  authorized  to  be 
sold  under  the  powers  and  provisions  of  the  acts  thereto- 
fore passed,  relating  to.  the  redemption  and  sale  of  the 
land-tax  or  some  of  them,  some  sales  of  lands  and  other 
hereditaments  had  been  made,  the  title  to  which,  as 
derived  under  such  sales,  might  be  considered  void  or 
voidable,  or  liable  to  be  impeached  at  law  or  in  equity, 
or  be  liable  to  objections  calculated  to  impede  the  free 
alienation  thereof,  it  was  further  enacted(o),  that  all  sales 
made,  and  all  conveyances  executed,  of  lands  or  other 
hereditaments  sold  for  the  purpose  of  redeeming  or  pur- 
chasing land-tax,  or  for  raising  money  as  thereinbefore 
was  mentioned,  provided  such  conveyances  should  appear 
to  have  been  executed  under  the  authority  and  with  the 
consent  and  approbation  of  the  respective  commissioners 

(o)    Sec.  25.. 

(*2o5) 


^292  ^^  PROTECTION  FROM 

for  the  time  being  authoihzed  to  consent  to  sales  made 
under  the  powers  of  the  said  acts  respectively,  or  any  of 
them,  should  be  and  the  sam<^  were  thereby  ratified  and 
confirmed  from  the  respective  periods  at  which  such  sales 
and  conveyances  were  respectively  made  and  executed, 
and  the  same  should  be  from  such  respected  periods  valid 
and  effectual,  and  be  considered  as  conferring  upon  the 
respective  purchasers  of  the  lands  and  hereditaments 
therein  respectively  comprised,  and  all  persons  claiming 
by,  from,  through,  under  or  in  trust  for  them  respectively, 
a  good  and  valid  title,  both  at  law  and  in  equity,  to  such 
lands  and  hereditaments,  to  all  intents  and  purposes 
whatsoever  ;  any  thing  in  the  said  acts,  or  any  law  or 
custom  to  the  contrarv  notwithstanding;. 

(*)And  it  was  further  enacted(/?),  that  every  person 
who  might  conceive  himself  or  herself  injured  or  prejudic- 
ed by  any  sales  thereby  confirmed,  should  at  any  time  within 
five  years  aftep  the  passing  of  the  said  act,  if  such  persons 
should  not  be  under  any  legal  disability,  but  if  he  or  she 
should  be  under  any  legal  disability,  then  within  five 
years  next  after  such  disability  should  be  removed,  be 
entitled  to  relief  either  by  the  decree  of  a  court  of  equity, 
on  a  bill  filed,  or  by  a  summary  application  to  a  court  of 
equity  by  petition,  and  by  the  usual  proceedings  before 
the  Master  or  other  proper  officer  of  the  court  on  such 
petition,  and  an  order  thereupon,  and  should  under  such 
decree  or  order  have  an  annual  rent-charge  to  such 
amount,  and  for  and  during  such  term  or  estate,  and 
charged  upon  such  lands  or  other  hereditaments,  as  such 
court  should  order  or  direct;  and  the  said  court  should 
have  full  power  to  adjust  the  proportion  and  terms  of  such 
annual  rent-charge  between  different  claimants,  and  to 
direct  the  settlement  of  such  annual  rent-charge  in  such 
manner  as  the  said  court  should,  under  the  circumstances 

(p)    Sec.  26. 
(*256) 


I 


OF  PROTECTION  FROM  CROWN  DEBTS. 


293 


of  the  case,  in  its  discretion,  think  proper  ;  and  should 
also  have  power  to  make  such  order  respecting  the  costs 
of  the  parties  as  the  court  should  think  lit. 

SECTION  IX. 
Of  Protection  from  Crown  Debts. 


Formerly,  where  the  seller  was  a  debtor  or  accountant 
to  the  Crown,  the  title  was  not  good  until  a  quietus  was 
entered  up  on  record.  And  a  purchaser  could* not  be  com- 
pelled to  take  the  title,  although  the  Crown  consented  to 
(*)the  payment  of  the  purchase-money  into  the  Exchequer 
on  account  of  the  deht(q). 

To  obviate  this  difficulty,  it  was  by  the  10th  section 
of  an  act  of  the  1st  and  2d  year  of  Geo.  4,  c.  121, 
intituled,  "  An  act  to  alter  and  abolish  certain  forms 
and  proceedings  in  the  exchequer  and  audit-office  rela- 
tive to  public  accounrants,  and  for  making  further  provi- 
sions for  the  purpose  of  facilitating  and  expediting  the 
passing  of  public  accounts  in  Great  Britain,  and  to  render 
perpetual  and  amend  an  act,  passed  in  the  54th  year  of 
his  late  Majesty,  for  the  effectual  examination  of  the 
accounts  of  certain  colonial  revenues,"  enacted,  that 
in  all  cases  where  any  estate  belonging  to  a  public 
accountant  shall  be  sold  under  any  writ  of  extent,  or 
any  decree  or  order  of  the  Courts  of  Chancery  or  Ex- 
chequer, and  the  purchaser  or  purchasers  thereof  or  of 
any. part  thereof  shall  have  paid  his,  her  or  their  pur- 
chase-money into  the  receipt  of  his  Majesty's  Exchequer, 

(9)  Brakespear  v.  Innes,  V.  C.  Master  of  the  Rollo,  MS. 

(*257) 


294  ^^  PROTECTION  FROM  CROWN  DEBTS. 

an  entry  of  such  payment  shall  be  made  by  the  com- 
missioners for  auditing  the  public  accounts  in  the  de- 
clared account  of  such  public  accountant,  and  from  and 
after  such  payment  and  entry  as  aforesaid,  such  pur- 
chaser or  purchasers,  his,  her  and  their  heirs  and  assigns, 
shall  be  wholly  exonerated  and  discharged  from  all  fur- 
ther claims  of  his  Majesty,  his  heirs  or  successors,  for  or 
in  respect  of  any  debt  arising  upon  such  declared  ac- 
count, although  his,  her  or  their  purchase-money  shall 
not  be  sufficient  in  amount  to  discharge  the  whole  of  the 
said  debt. 

This  provision  was  made  to  meet  a  particular  case,  and 
is  therefore  by  no  means  a  general  remedy.  In  the  case 
alluded  to,  the  debtor  was  dead,  and  there  was  a  declared 
account  against  him,  which,  as  he  was  dead,  could  not 
be  increased  by  further  receipts.  Upon  a  petition  by  the 
(*)seller  after  the  act.  Sir  Thomas  Plumer,  Master  of  the 
Rolls,  ordered  the  seller  to  pay  the  costs  of  the  petition, 
and  of  the  payment  into  the  Exchequer,  and  of  the  entry 
being  made  by  the  commissioners.  The  purchaser 
claimed  an  abatement  for  dilapidations,  and  it  was  sub- 
mitted whether  the  payment  of  the  balance  would  satisfy 
the  act.     The  Master  of  the  Rolls  held  that  it  would. 


With  respect  to  the  general  operation  statutes  passed 
in  favor  of  purchasers,  it  may  be  laid  down  as  a  rule, 
that  equity  will  not  permit  them  to  be  taken  advantage  of 
where  the  purchasers  have  notice  of  the  incumbrance  or 
deceit  which  the  statutes  were  intended  to  guard  them 
against,  because  qui  scit  se  decipi  non  decipitur,  and  the 
resolutions  respecting  voluntary  settlements  must  be  con- 
sidered anomalous. 

(*268) 


OF  EQUITABLE  RELIEF  AND  PROTECTION.  C)Q^ 

SECTION   X. 

Of  Equitable  Relief  and  Protection. 


1.  Thus  have  we  taken  a  cuisorj  view  of  the  several 
statutes  passed  for  the  relief  or  protection  of  purchasers. 
The  relief  and  protection  afforded  to  purchasers  by  the 
rules  of  equity  form  the  next  branch  of  our  inquiry. 

A  court  of  equity  acts  upon  the  conscience,  and  as  it 
is  impossible  to  attach  any  demand  upon  the  conscience 
of  a  man  vvho  has  purchased  for  a  valuable*  consideration 
bojia  fide,  and  without  notice  of  any  claim  on  the  estate, 
such  a  man  is  entitled  to  the  peculiar  favor  and  protec- 
tion of  a  court  of  equity. 

And  it  has  been  laid  down  as  a  general  rule,  that 
a  purchaser  bona  fide,  and  for  a  valuable  consideration, 
without  notice  of  any  defect  in  his  title  at  the  time  he 
made  his  purchase,  may  buy  or  get  in  a  statute,  mortgage, 
(*)or  any  other  incumbrance  (and  that  although  it  is 
satisfied)  ;  and  if  he  can  defend  himself  at  law  by  any 
such  incumbrance,  his  adversary  shall  never  be  aided  in 
a  court  of  equity  for  setting  aside  such  incumbrance  ;  for 
equity  will  not  disarm  a  purchaser,  but  assist  him  ;  and 
precedents  of  this  nature  are  very  ancient  and  numerous, 
viz.  where  the  Court  hath  refused  to  give  any  assistance 
against  a  purchaser,  either  to  an  heir,  or  to  a  vendor,  or 
to  the  fatherless,  or  to  creditors,  or  even  to  one  purchaser 
against  another(r)(407). 

(r)  Basset  v.  Nosworthy,  Finch,  102;  Jerrard  v.  Saunders,  2  Ves. 
jun.  454.  See  Anon.  2  Cha.  Ca.  208  ;  Hithcox  v.  Sedgwick,  2  Vern. 
156  ;  JGoleborn  v.  Alcock,  2  Sim.  662.     ' 

(407)  See  Fitzsimmons  v.  Ogden,  7  Crancb,  2.  Duvall  v.  Bibb,  4 
Hen.  &  Munf.  113. 

(*259) 


296  ^^  EQUITABLE  RELIEF 

And  the  favor  and  protection  of  a  court  of  equity  is 
extended  to  a  purchaser,  not  only  where  he  has  a  prior 
legal  estate,  but  also  where  he  has  a  better  right  to  call 
for  the  legal  estate  than  any  other  person(5)(408). 

A  purchaser  cannot,  however,  protect  himself  by  taking 
a  conveyance  or  assignment  of  a  legal  estate  from  a  trus- 
^e  in  whom  it  was  vested  upon  express  trusts(i)(409). 

The  Court  of  Chancery  will  not  supersede  a  commission 
of  bankruptcy  even  for  a  fraud,  where  there  have  been  pur- 
chasers under  it(M)  ;  for  a  commission  being  superseded, 
all  falls  with  h(x).  So  equity  will  not  relieve  against 
a  bona  fide  purchaser  without  notice,  although  the  remedy 
be  gone  by  accident(2/),  nor  will  it  compel  him  to  dis- 
cover any  writings  which  may  weaken  his  title(2) ;  or 
(*)take  any  advantage  from  him  by  which  he  may  protect 

(«)  See  2  Vern.  600  ;  Willoughby  r.  Willoughby,  1  Term  Rep. 
763;  Blake  v.  Sir  Edward  Hungerford,  Prec.  Cha.  158;  Charlton  v. 
Low,  3  P.  Wms.  328.  Ex  parte  Knott,  11  Ves.  jun.  609;  Shine  v. 
Gough,  1  Ball  &  Beatty,  436. 

{i)  Saunders  v.  Dehew,  2  Vern.  271  ;  2  Freeni.  123. 

(«)  Ei:  parte  Edwards,  10  Ves.  jun.  104  ;  ex  parte  I.eman,  13  Ves. 
jun,  271  ;  ej?  paWe  Rawson,  1  Ves.  &  Bea.  160;  ex  parte  Lautour,  1 
Mont.  «fc  Bligh.  89. 

{x)  See  1  Ves.  &  Bea.  66. 

{y)  Harvy  v.  Woodhouse,  Sel.  Cha.  Ca.  80  ;  Bell  v.  Cundall,  Ambl. 
101. 

(2)  Bishop  of  Worcester  v.  Parker,  2  Vern.  255  ;  Hall  v.  Adkin- 
son,  2  Vern.  463  ;  1  Eq.  Ca.  Abr.  333,  pi.  64 ;  Millard's  case,  2 
Freem.  43  ;  Sir  John  Burlace  v.  Cook,  2  Freem.  24  ;  Jerrard  v.  Saun- 
ders, 2  Ves.  jun.  454. 

(408)  Of  two  equitable  incumbrancers,  she  who  hath  the  preferable 
right  to  call  for  the  legal  estate,  is  entitled  to  preference ;  though  he 
hath  not  actually  got  it  in,  nor  obtained  an  assignment,  nor  even  posses- 
sion of  the  deed  conveying  the  outstanding  legal  title  ;  and  though  his 
lien  is  subsequent  in  date  to  the  other  incumbrance.  Williamson  v. 
Gordon's  Exrs.  6  Munf.  257. 

(409)  See  Murray  v.  Ballou,  1  Johns.  Ch.  Rep.  566,  674,  676. 
(*260) 


AND  PROTECTION.  qq^ 

himself  at  law,  or  obtain  terms  of  his  antagonist(«)  ; 
neither  will  equity  give  any  person  an  advantage  over(6) 
a  purchaser,  or  any  assistance  against  him(c)  ;  and  his 
having  taken  a  collateral  security  for  the  title  will  not 
make  his  case  worse(//)(I),  unless  the  purchase  by  the 
vendor  was  fraudulent,  in  which  case  it  would  have  con- 
siderable weight  with  a  court  of  equity(e). 

The  rules  on  this  subject  have  gone  so  far,  that  a  pur- 
chaser bona  fide,  for  valuable  consideration,  and  without 
notice,  has  been  allowed  to  take  advantage  of  a  deed 
which  he  stole  out  of  a  window  by  means  of  a  ladder(X), 
and  of  a  deed  obtained  by  a  third  person  without  consi- 
deration, and  by  fraud(o-). 

If  a  man  purchase  for  valuable  consideration,  without 
notice  from  a  disseisor,  and  the  disseisee  is  a  trustee  for 
another,  although  the  general  rule  is,  that  a  trustee  is 
bound  to  convey,  upon  request,  to  his  cestui  que  trust, 
yet  if  in  this  case  the  trustee  refuse  to  convey  the  legal 
(*)estate  to  the  cestui  que  trust,  or  to  suffer  the  latter  to 
bring  an  ejectment  in  his  (the  trustee's)  name,  a  court  of 


(c)  Walwynn  r.  Lee,  9  Yes.  jun.  24. 

(b)  BechinuU  v.  Arnold,  1  Vern.  354. 

(c)  See  Graham  v.  Graham,  1  Ves.  262. 

(tZ)  Lowther  r.  Carleton,  For.  187,  S.  C.  MS.  See,  however,  White 
V.  Stringer,  2  Lev.  105  ;  Jennings  v.  Selleck,  1  Vern.  467. 

(e)  How  V.  "VVeldon,  2  Ves.  516. 

(/)  See  a  case  cited  in  Sanders  v.  Dehgne,  2  Freem.  123  ;  and 
Siddon  r.  Charnells,  Bunv.  298  ;  and  see  Fagg's  case,  cited  1  Vern. 
52,  and  reported  in  1  Cha.  Ca.  68,  nomine  Sherly  r.  Fagg,  where  the 
circumstance  of  theft  does  not  appear. 

{g)  Harcourt  v.  Knowel,  2  Vern.  159,  cited. 


(I)  In  Lowther  v.  Carleton,  the  bond  of  indemnity  was  given  by  the 
executors  of  the  first  purchaser  who  bought  without  notice  to  the 
second  purchaser,  who  bought  of  them  with  notice,  and  he  was  allow- 
ed to  avail  himself  of  the  want  of  notice  in  the  first  purchaser. 

VOL.   Ti.  38  (*261) 


rtQO  OF  EQUITABLE  RELIEF 

equity  will  not  compel  the  trustee  to  do  so,  because  it 
would  in  effect  be  granting  relief  against  a  purchaser(/0. 
This  case  strongly  marks  the  favor  shown  to  a  bo7ia  fide 
purchaser. 

Equity  will  relieve  a  bona  fide  purchaser  without  notice 
from  ancient  statutes,  if  there  be  no  direct  proof  on  either 
side,  and  will  decree  them  to  be  cancelled(/). 

And  this  rule  extends  to  mortgages,  and  all  incum- 
brances which  have  lain  dormant  for  a  long  time,  and  no 
demand  made  in  respect  thereof  (A;)(410). 

So  equity  will  relieve  a  purchaser  for  valuable  con- 
sideration against  a  defective  execution  of  a  power,  in 
the  same  manner  as  he  will  be  relieved  against  a  defective 
surrender  of  copyholds(/)(411). 

But  if  a  devisee,  having  an  estate  for  life,  with  a  power 
to  dispose  of  the  inheritance  hy  loill,  sell  the  estate  in  his 
life-time,  equity  cannot  relieve  the  purchaser,  although 
by  the  effect  of  accident  he  has  got  the  legal  estate  in 
fee-simple;  for,  in  a  case  like  this,  the  testator  cannot 
be  understood  to  mean  that  the  devisee  should  so  execute 
the  power.  The  intention  is,  that  he  should  give  by 
will,  or  not  at  all ;  and  it  is  impossible  to  hold,  that  the 
execution  of  an  instrument  or  deed,  which,  if  it  availed  to 


{h)  Turner  v.  Back,  22  Vin.  p.  21,  pi.  5,  where  the  cestui  que  fnisf 
claimed  under  a  voluntary  settlement. 

(i)  Burgh  V.  Wolf,  Toth.  226  ;  Smith  v.  Rosewell,  ibid.  247  ;  and 
see  ibid.  224. 

{k)  See  Abdy  v.  Loveday,  Finch,  260 ;  Sibson  v.  Fletcher,  1  Cha. 
Rep.  32. 

(4)  Vide  infra ;  and  see  Chapman  v.  Gibson,  3  Bro.  C.  C.  229  ; 
Treat,  of  Powers,  ch.  6. 

(410)  See  Reigal  v.  Wood,  1  Johns.  Ch.  Rep.  406,  et  seq.  In  this 
case,  however,  there  was  fraud,  in  addition  to  the  staleness  of  the 
claim. 

(411)  See  Roberts  V.  Stanton,  2  Mimf.  129. 


AND  PROTECTION.  OQQ 

m^y  purpose,  must  avail  to  the  destruction  of  that  power 
the  testator  meant  to  remain  capable  of  execution  to  the 
moment  of  the  devisee's  death,  can  be  considered,  in 
(*)equity,  an  attempt  in  or  towards  the  execution  of .  the 
povver(m). 

The  mistake  or  ignorance  of  any  of  the  parties  to  a 
conveyance  of  their  rights  in  the  estate  will  not  turn  to 
the  prejudice  of  a  bona  fide  purchaser  for  a  valuable  con- 
side  rat  ion  (?i). 

If,  however,  upon  a  purchase,  any  person  is  required  to 
join  to  obviate  an  objection  to  the  title,  and  the  objection 
is  stated  in  such  a  manner  as  not  to  convey  full  informa- 
tion, the  purchaser  cannot  avail  himself  of  the  instrument 
iigainst  the  person  executing  it(o). 

But  if  a  person  having  only  a  general  statement  that 
there  are  objections  to  a  title  which  his  concurrence  will 
obviate,  upon  that  communication  executes  an  instrument 
and  conveys,  there  is  nothing  to  affect  the  conscience  of 
the  purchaser,  so  that  the  person  conveying  could  ever 
get  the  estate  back.  If  he  does  not  ask  the  nature  of  the 
objections,  he  determines  against  himself  as  to  any  ques- 
tion between  him  and  the  purchaser,  if  the  deed  does  not 
show  that  the  objections  were  withheld  from  him(p). 

If  a  person  having  a  right  to  an  estate  permit  or  en- 
courage a  purchaser  to  buy  it  of  another,  the  purchaser 

(m)  Per  Lord  Eldon  ;  Reid  v.  Shergold,  10  Ves.  jun.  370.  The 
opinions  of  several  eminent  lawyers  were  taken  on  this  case,  before  it 
went  into  court,  and  they  all  agreed  that  the  case  was  desperate.  In 
fact,  it  was  owing  to  those  discussions  that  the  plaintiff  in  this  cause 
knew  of  his  claim,  and  recovered  the  estate.      Vide  supra,  vol.  i.  p.  12. 

(«)   Maiden  v.  Menill,  2  Atk.  8. 

(o)   Lord  Braybroke  v.  Inskip,  8  Ves.  jun.  417. 

(/))  Lord  Braybroke  v.  Inskip,  ubi  sup.     See  3  Swanst.  73. 

(*262) 


QQQ  OP  EQUITABLE  RELIEF 

shall  hold  it  against  the  person  who  has  the  r\ght(q)(M2), 
although  covert(r),  or  under  age(.?). 

C*)And  the  same  rule  prevails  even  where  the  represen- 
tation is  made  through  a  mistake,  if  the  person  making 
it  might  have  had  notice  of  his  right(/)(I). 

So  where  a  person,  intending  to  buy  an  estate,  inquires 
of  another  whether  he  has  any  incumbrance  on  the  estate, 
and  states  his  intention  to  buy  it,  if  the  person  of  whom 
the  inquiry  is  made  deny  the  fact,  equity  will  relieve  the 
purchaser  against  the  incumbrance(w).  Again,  where 
a  purchaser  of  an  equitable  right  inquires  of  the  trustee 
of  the  legal  estate,  whether  he  knows  of  any  incumbrance, 
and  he  answers  in  the  negative,  if  it  turn  out  that  he  had 
notice  of  any  charge,  he  will  be  answerable  to  the  pur- 
chaser, although  he  plead  forgetfulness  in  excuse(.r). 

But  a  person  having  an  incum[)rance  upon  an  estate  is 

(q)  Hobs  V.  Norton,  2  Cha.  Ca.  128;  Hanning- «.  Ferrers,  2  Eq. 
Ca.  Abr.  356,  pi.  20  ;  and  see  1  Freem.  310  ;   16  Yes.  jun.  253. 

(r)  Savage  v.  Forster,  9  Mod.  35 ;  and  see  Evans  v.  Bicknell,  6 
Ves.  jun.  174. 

(s)  Watts  V.  Creswell,  9  Vin.  415;  9  Mod.  38.  96,  97  ;  4  Bro.  C. 
C.  607,  n.  ;  Clare  v.  Earl  of  Bedford,  13  Vin.  536  ;  and  see  3  Cha. 
Ca.  85.  123  ;  Cory  v.  Gerteken,  2  Madd.  46. 

(t)  Pearson  v.  Morgan,  2  Bro.  C.  C.  388*  ;  see  also  Teasdale  v. 
Teasdale,  Sel.  Cha.  Ca.  59  ;  but  observe  the  circumstances  of  that  case. 

(m)   Supra,  vol.  i.  p.  9. 

(a?)  Burrowes  v.  Lock,  10  Ves.  jun.  470 ;  supra,  vol.  i.  p.  5. 


(I)  Sed  qu.  this  as  a  general  rule,  unless  there  be  fraud  ?  See  Hay- 
croft  V.  Creasy,  2  East,  92  ;  Tapp  v.  Lee,  3  Bos.  &  Pull.  367  ;  and 
see  Holmes  «.  Custance,  12  Ves.  jun.  279. 

(412)  See  Green  v.  Price,  1  Munf.  449.  Taijlor  v.  Cole,  4  Munf. 
351  ;  and  see  Pollard  v.  Carhvright,  2  Hen.  &.  Munf.  116.  JJooe  ^J- 
Harrison  v.  Pierce,  1  Wash.  217.  Applehtiry  v.  ^tithony's  Exrs.  1 
Wash.  289.  JViven  v.  Belknap,  on  appeal,  2  Johns.  Rep.  673. 
Livingston  v.  Byrne,  on  appeal,  1 1  Johns.  Rep.  555.  See  also,  Brinck- 
erhoff  v.  Lansing,  4  Johns.  Ch.  Rep.  65,  Stoors  v.  Barker,  6  Johns. 
Ch.  Rep.  166.     See  Wend^ell  v.  Rensselaer,  1  Johns.  Ch.  Rep.  344. 

(*263) 


II 


AND  PROTECTION. 


301 


not  bound  to  give  notice  of  it  to  any  person  whom  he 
knows  to  be  in  treaty  for  the  purchase  of  tl>e  estate(»/). 

If  a  purchaser  take  a  defective  conveyance  from  the 
vendor,  equity  will  compel  the  vendor  and  Jiis  heirs,  and 
all  other  persons  claiming  under  him  by  act  of  law,  as 
assignees  of  a  bankrupt,  althoiigli  without  notice^  and 
even  persons  claiming  as  purchasers  for  valuable  con- 
sideration, if  with  notice,  to  make  good  the  convey- 
ance(2)(413). 

(y)   Osborn  v.  Lea,  9  Mod.  96. 

(2)  Jaques  v.  Huntly,  1  Cha.  Rep.  5,  cited  ;  Taylor  v.  V.'heeler,  2 
Yern.  564  ;  Morse  v.  Faulkner,  1  Anstr.  11  ;  and  see  2  Ves.  jun.  151  ; 
6  Ves.  jun.  745  ;    11  Ves,  jun.  625.     See  vol.  ii.  103,  supra. 

(4\Z)  See  Somerville  v.  Trueman,  4  Har.  &  M'Hen.  43.  J^P Wil- 
liams V.  JVtsley,  2  Serg.  &  Rawle,  515. 

In  the  language  of  Chief  Justice  Tilghman  "  when  articles  of  agree- 
ment are  entered  into,  by  which  a  conveyance  is  covenanted  to  be 
made,  and  afterwards  a  conveyance  is  made,  and  accepted,  which  differs 
in  some  respects  from  the  articles,  the  deed  of  conveyance,  which  is 
the  consummation  of  the  agreement,  shall  be  taken  for  the  ultimate 
intent  of  the  parties,  and  prevail  over  the  articles.  But  if  the  deed  is 
accepted  under  a  misapprehension,  occasioned  by  the  fault  of  the  plain- 
tiff", however  strict  the  law  might  be,  they  would  be  entitled  to  relief  in 
equity,"  Crotzer  r.  Russell,  9  S.  &  R.  78.  But  in  Brown  v.  Moorhead, 
8  ib.  569,  where  the  article  of  agreement  stipulated  for  the  conveyance 
of  a  tract  of  land,  and  also  to  convey  "  all  the  right,  title,  claim  and  in- 
terest of  other  persons  in  another  tract  of  land  ;  held,  that  in  an  action 
lor  the  purchase  money,  the  defendant  might  show  by  the  ai  tides  what 
th<s  agreeinent  was,  although  a  deed  had  been  given  and  accepted  of 
the  hi>st  tract;  because  that  was  but  a  fulfilment  in  part  of  what  the 
vendor  ha<3  covenanted  to  do  by  the  articles."  Without  this  evidence, 
the  Court  and  ^ury  would  be  unable  to  decide,  what  would  be  the  equity 
of  the  case  between  the  parties. 

So,  in  Frederick  v.  Campbell,  14  S.  &  R.  293,  which  was  an  action 
on  a  bond  given  for  the  consideration  of  land  contracted  for  by  articles, 
which  was  stipulated  to  contain  225  acres  ;  and  the  deed  subsequently 
executed  described  the  land  by  boundaries,  culling  it  226  acres  ;  held, 
that  it  was  competent  for  the  defendant  to  show  In  evidence  any  decep- 
tion practised  in  the  outset  of  the  transaction.  He  was  admitted  to 
prove  that  at  the  execution  of  the  articles,  the  plaintiff'asserted  that  the 
land  contained  225  acres,  and  said  he  would  make  his  assertion  good. 


gQQ  OF  EQUITABLE  RELIEF 

(*)So  a  purchaser,  by  a  defective  conveyance,  will 
be  rebeved  against  persons  who  did  not  consider  the  hind 
as  their  original  or  primary  security  ;  although  they  may 
have  obtained  an  advantage  at  law(a). 

And  if  a  man  sell  an  estate  to  which  he  has  no  title, 
and  after  the  conveyance  acquire  the  title,  he  will  be 
compelled  to  convey  it  to  the  purchaser. 

But  it  seems  to  have  been  considered  that  this  is 
a  personal  equity  attaching  on  the  conscience  of  the 
party,  and  not  descending  with  the  land  ;  and  therefore, 
that  if  the  vendor  do  not  in  his  life-time  confirm  the  title, 
and  the  estate  descend  to  the  heir  at  law,  he  will  not  be 
bound  by  his  ancestor's  contract(6).  This  opinion,  how- 
ever, deserves  great  consideration. 

Where  the  conveyance  is  not  perfected  with  the  so- 
lemnities positively  required  by  an  act  of  parliament,  as 
in  the  case  of  the  ship-registry  acts,  equity  cannot  relieve, 
as  it  would  be  against  the  policy  of  the  acts,  unless  per- 
haps there  were  direct  fraud,  in  which  case  it  should 
seem  that  equity  would  relieve(c)(414). 

It  has  been  said,  that  every  person  who  takes  an  assign- 
ment of  a  chose  in  action  gives  personal  confidence  that 
there  is  no  lien  upon  it(flf).  Upon  the  purchase  of  a  chose 
in  action,  or  of  any  equitable  right,  it  is  the  invariable 
practice  of  the  Profession  to  require  notice  of  the  sale  to 
be  given  to  the  trustee.     This  of  course   binds  his  con- 

(«)  Burgh  r.  Francis,  Finch,  28  ;  and  see  Gilb.  For.  Rom.  -^^S- 
(6)   Morse  v.  Faulkner,  1  Anstr.  11  ;  Carleton  v.   LeigKon,  3   Mer. 
p.  667.     See   Bensley   v.  Burdon,  2   Sim.  &   Stu.   &^Q,  upon    appeal 
affirmed ;  but  the  principal  point  upon  estoppel  has  since  been  properly 
overruled. 

(c)  Speldfr.  Lechmere,  13  Ves.  jun.  588:  tx  parte  Yallop,  15  Ves. 
jun.   60.     See  ex  parte  Wright,  1  Rose,  308. 

(d)  Per  Lord  Thurlow,  in  casu  Davies  v.  Austen,  1  Ves.  jun.  247. 

(414)  See  Astor  v.  Wells,  4  Wheat.  466. 
(*264) 


AND  PROTECTION. 


303 


science.  And  notwithstanding  the  general  rule  that, 
with  respect  to  equitable  rights,  qui  prior  est  tempore 
(*)potior  est  jure(e},  it  seems  probable  that  equity  would 
prefer  a  subsequent  purchaser  who  had  given  a  proper 
notice  to  the  trustee  to  a  prior  purchaser  who  had  neg- 
lected to  do  so.  At  least  there  is  a  case(/)  which  seems, 
in  some  measure,  to  authorize  this  conclusion(415). 

Since  these  observations  weve  published,  this  point  has 
been  elaborately  discussed  in  several  cases.  Sir  Thomas 
Plumer  held  that  priority  in  time  must  prevail,  and  that 
mere  neglect  of  notice  was  not  sufficient  to  postpone  a 
purchaser.  In  order  to  deprive  him  of  his  priority,  it 
was  necessary  that  there  should  be  such  laches  as  in  a 
court  of  equity  amounted  to  fraud(g).  This  decision  the 
learned  Judge  forgot  (and  the  bar  was  not  aware  of  it) 
upon  the  discussion  in  two  subsequent  cases(^),  in  which 
the  same  learned  Judge  decided  that  the  purchaser  who 
had  alone  made  inquiry,  and  given  notice,  was  to  be  pre- 
ferred over  the  prior  purchaser,  although  he  had  simply 
neglected  to  give  notice.  And  these  decisions  were 
affirmed  upon  appeal  by  the  Lord  Chancellor ;  so  that 
a  prior  purchaser  who  has  not  given  notice  will  be  post- 
poned to  a  subsequent  purchaser  who  has. 

It  may  be  laid  down  as  a  general  rule,  that  a  purchaser 
of  a  chose  in  action(/)(416),  or  of  any  equitable  Ut\e(k) 

(e)  See  Tourville  v.  Naish,  3  P.  Wms.  307 ;  and  see  2  P.  Wms. 
495  ;   15  Ves.  jun.  354  ;  2  Taunt.  415. 

(/)  Stanhope  v.  Earl  Verney,  Butler's  n.  (1)  to  Co.  Litt.  290,  b. ; 
and  see  1  Ves.  367  ;  9  Yes.  jun,  410  ;  but  see  Frere  v.  Moore,  S  Pri. 
475,  the  facts  of  which  do  not  appear  to  have  been  ascertained. 

(g)  Cooper  V.  Tynman,  3  Russ.  60. 

(/i)  Dearie  v.  Hall,  Loveridge  v.  Cooper,  3  Russ.  1. 

(i)  Davies  v.  Austen,  nbi  sup.  ;  Turton  v.  Benson,  2  Vern.  764  ; 
Priddy  v.  Rose,  3  Mer.  86  ;  Hamilton  r.  Stokes,  4  Price,  161. 

{k)    Whitfield  v.  Fausset,  1  Ves.  387. 

(415)  See  Berry  \.  Mutual  Ins.  Co.  2  Johns.  Ch.  Rep.  603,  608. 

(416)  See  Murray  v.  Sylburn,  2  Johns.  Ch.  Rep.  443.     JS^orton  v. 

(*266) 


gn^  OF  EQUITABLE  RELIEF 

(417),  must  always  abide  by  the  case  of  the  person  from 
whom  he  buys,  and  will  be  entitled  to  all  the  remedies  of 
the  seller(/).  And  yet  as  we  have  seen(m),  there  may  be 
(*)a  case  in  which  a  purchaser  of  a  chose  in  action,  mere- 
ly by  sustaining  that  character,. will  be  in  a  better  situa- 
tion than  the  person  was  of  whom  he  bought.  And  it 
seems,  that  where  a  person  purchases  a  specific  legacy,  de- 
livered to  the  legatee  by  the  executor,  if  there  is  a  defi- 
ciency of  assets,  the  creditors  must  follow  their  demand 
in  reasonable  time,  or  equity  will  not  assist  them,  other- 
wise legacies  would  be  eternally  locked  up,  and  creditors 
encouraged  in  their  laches,  and  to  call  on  purchasers  of 
legacies  to  refund  at  a  great  length  of  time(w). 

So  if  trustees  suffer  a  tenant  for  life  of  a  renewable 
leasehold  to  enjoy  all  the  profits  in  breach  of  a  trust 
reposed  in  them  to  renew  out  of  the  rents  and  profits,  the 
assets  of  the  tenant  for  life  will  be  applicable  in  the  first 
instance  to  their  indemnity,  and  a  purchaser  from  the 
tenant  for  life  of  his  life-interest,  will  also,  it  seems,  be 
answerable  to  the  person  for  whose  benefit  the  renewal 
ought  to  have  been  made.  But,  as  between  the  trustees 
and  the  purchaser,  the  latter  is  not  primarily  answerable. 

(/)    See  ex  parte  Lloyd,  17  Ves.  jun.  245. 

(m)   George  v.  Milbanke,  9  Ves.  jun.  190  ;  supra,  vol.  ii.  p.  169. 

(n)  Cholmondley  v.  Orford,  Ch.  H.  T.  1  58,  MS. 


Rose,  2  Wash.  233,  254.  Wheeler  v.  Hughes,  1  Dall.  28.  See  also, 
2  Yeates,  23.  Livingston  v.  Dean,  2  Johns.  Ch.  Rep.  479.  Clule  v. 
Robinson,  on  appeal,  2  Johns.  Rep.  595.  Livingston  v.  Hubbs,  2 
Johns.  Ch.  Rep.  512.  Rodriguez  v.  Haffernan,  5  Johns.  Ch.  Rep. 
417;  And  see  Chamberlain  v.  Gorham,  20  Johns.  Rep.  144.  Bank 
of  JViagara  v.  M'Cracken,  18  Johns.  Rep.  493.  Furman  v.  Haskin, 
2  Caines'  Rep.  369.  But  an  assignee  will  not  be  subject  to  any  latent 
equity  residing  in  a  stranger,  against  the  assignor.  Murray  v.  Syl- 
burn  ;  and  Livingston  v.  Dean,  ut  supra.  See  Wilcox  v.  Calloumy,  1 
Wash.  Rep.  41. 

(417)  See  Porter  v.  Breckenridge,  Hardin,  21.  Murray  v.  Gou- 
verncur,  2  Johns.  Cas.  438. 

(*266) 


AND  PROTECTION.  ^/^r 

Ifthej  permit  the  tenant  for  life  to  apply  to  his  own  use 
all  the  rents  and  profits,  and  abstain  from  performing  the 
trust,  they  cannot  contend  that  it  was  the  purchaser's 
duty  to  withhold  any  part  of  the  rents  and  profits,  or  the 
consideration  that  came  in  place  of  theni(o). 

Wiiere  a  purchaser,  after  th(i  conveyance,  or  even  he- 
fore  the  conveyance,  in  prospect  of  the  articles  for  sale 
being  carried  into  execution,  has  laid  out  money  in  last- 
ing improvements,  there  are  but  few  cases  in  which  he 
will  not  be  allowed  for  them,  in  case  the  aid  of  a  court  of 
equity  is  required  to  relieve  against  the  purchaseQ?)(418). 

And  even  supposing  the  Court  to  be  unwilling  to  make 
(*)an  allowance  for  repairs  and  improvements,  yet  if  an 
account  of  rents  and  profits  is  to  be  taken,  and  the  plaintiff 
will  not  accept  the  account,  according  to  the  value  of  the 
estate  when  the  purchaser  entered,  but  insists  to  have  the 
account  taken  according  to  the  present  value,  the  Court 
will  compel  him  to  make  an  allowance  for  repairs  and 
improvements(^). 

li,  however,  a  man  has  acted  fraudulently,  and  is  con- 
scious of  a  defect  in  his  title,  and  with  that  conviction  in 
his  mind  expends  a  sum  of  money  in  improvements,  he 
is  not  entitled  to  avail  himself  of  it(419).  If  a  different 
rule  should  prevail,  it  would  certainly,  as  Lord  Clare  re- 

(o)  Ld.  Montford  v.  Ld.  Cadogan,  17  Ves.  jun.  485. 

(p)  Edlin  r.  Batalay,  2  Lev.  152;  Peterson  v.  Hickman,  1  Cha. 
Rep.  3,  cited  ;  Whalley  v.  Whalley,  1  Yern.  484  ;  Savage  v.  Taylor, 
For.  234  ;  Baugh  v.  Price,  1  Wils.  320  ;  ex  parte  Hughes,  6  Ves.  jun. 
617;  ex  parle  James,  8  Ves.  jun.  337;  Browner.  Odea,  1  Scho.  & 
Lef.  115;  and  see  9  Mod.  412;  Barnard.  Cha.  Rep.  460;  1  Yern. 
1.59;   Shine  v.  Gough,  1  Ball  &  Beatty,  444. 

{q)  Thomlinson  r.  Smith,  Finch,  378. 

(418)    See  Witherspoon  v.  Andersons  Exis.  3  Des.  245.  See  Parlr- 
urst  V.  Fan   Cortlandt,    1    Johns.  Ch.  Rep.  273.   S.  C   on   appeal,    14 
Johns.  Rep.  15.      Benedict  v.  Ltjnch,  1  Johns.  Ch.  Rep.  370. 
■  (419)    See  Gillespie  v.  .Moon,  2  Johns.  Ch-  Rep-  5^5,  602. 
VOL.    II.  39  (*267) 


QQg»  OF  EQUITABLE  RELIET 

marked,  fully  justify  a  proposition  once  stated  at  the  bar 
of  the  Court  of  Chancery  in  Ireland,  that  it  was  a  com- 
mon equity  to  improve  the  right  owner  out  of  the  posses- 
sion of  his  estate.  However,  if  the  sums  are  large,  that 
circumstance  may  influence  the  Court  in  decreeing  an 
account  from  the  time  of  filing  the  bill  only,  and  not 
from  the  time  of  taking  possession(r). 

But  if  the  aid  of  a  court  of  equity  is  not  required,  and 
a  person  can  recover  the  estate  at  law,  equity,  unless 
there  be  fraud,  cannot,  it  is  conceived,  relieve  the  pur- 
chaser on  account  of  money  laid  out  in  repairs  and 
improvements ;  but  must  dismiss  a  bill  for  that  purpose 
with  costs(5). 

Where  a  person  purchases  with  notice  of  an  incum- 
brance, although  he  pay  off  some  to  which  that  in- 
cumbrance was  posterior,  yet  he  lets  it  in  as  the  first 
(*)incumbrance  on  the  estate,  and  cannot,  as  against  that 
incumbrance,  claim  the  benefit  of  the  prior  incumbrances 
which  he  has  paid  off(t). 

And  if  a  mortgagee  would  avail  himself  of  prior 
incumbrances  which  he  pays  off  against  subsequent  sub- 
sisting ones,  he  should  actually  keep  on  foot  those  which 
he  pays  off,  and  not  allow  them  to  be  extinguished(i(). 
The  distinction  is  a  very  subtle  one. 

It  seems,  that  where  two  persons  claim  a  reversion, 
to  which  only  one  can  be  entitled,  a  bill   will  lie  to  per- 

(r)  Kenny  v.  Browne,  3  Ridgw.  P.  C.  518. 

(s)  See  Needier  v.  Wright,  Nels.  Clia.  Rep.  57 ;  but  see  Peterson 
V.  Hickman,  1  Cha.  Rep.  3,  cited.  This  case,  probably,  turned  on  the 
fraud  in  the  wife  standing  by  while  the  improvements  were  made,  with- 
out giving  notice  of  her  claim  to  the  tenant. 

{t)  Toulmin  v.  Steere,  3  Mer.  210,  This  case  was  appealed  from  ; 
but  the  appeal  was  stopped  by  a  relation  of  the  appellants,  who  chose  to 
pay  off  the  incumbrance. 

(«)  Parry  v.  Wright,  1  Sim.  &  Stu.  369 ;  affirmed  upon  appeal  by 
the  L.  C,  6  Russ.  142,  sed  qu. 

(*268) 


AND  PROTECTION.  OQ-y 

petuate  testimony,  although  both  of  them  are  purchasers, 
or  only  one  of  them  is  a  purchaser(.'r)  ;  for  such  a  bill 
calls  for  no  discovery  from  the  defendant,  but  merely 
prays  to  secure  that  testimony,  which  might  be  had  at 
that  time  if  the  circumstances  called  for  it(I), 


n.  Thus  have  we  seen  how  peculiarly  a  bona  fide 
purchaser  without  notice  is  favored  and  protected  by 
equity.  But  if  a  purchaser  have  notice  of  any  claim,  or 
incumbrance,  his  conscience  is  affected  ;  and  a  court  of 
equity  will  then  not  only  refuse  to  interfere  in  his  favor, 
but  will  assist  the  claimant  or  incumbrancer  in  esta- 
blishing his  claims  against  him  ;  his  having  given  a  con- 
sideration will  not  avail  him ;  for,  as  Lord  Hardwicke 
observes,  he  throws  away  his  money  voluntarily,  and  of 
his  own  free  will(y)(420).  And  it  may  be  laid  down  as 
(*)a  general  rule,  that  a  purchaser  with  notice  is  in  equity 
bound  to  the  same  extent,  and  in  the  same  manner,  as  the 
person  was  of  whom  he  purchased(z)(421).     Thus,  sup- 

{x)   See  Lord  Duisley  v.  Fitzhaidinge,  6  Ves.  jun.  251. 

<  y)   See  3  Atk.  238  ;   Fitz.  T.  Subpoena,  pi.  2. 

{z)  Winged  v.  Lefeburj,  1  Eq.  Ca.  Abr,  32,  pi.  43  ;  Jackson's 
■case,  Lane,  60  ;  Gore  r.  Wiglesworth,  cited,  ibid ;  Earl  Brook  v. 
Bulkeley,  2  Ves.  498 ;  Taylor  v.  Stibbeii,  2  Vcs.  jun.  437;  Lord 
Verney  v.  Carding,  1  Scho.  &  Lef.  345,  cited ;  Crofton  v.  Ormsby,  2 
Scho.  &  Lef.  583  ;  Dunbar  v.  Tredennick,  2  Ball  &  Beat.  304. 

(I)  But  note,  the  point  was  not  settled ,  and  it  does  not  seem  quite 
clear  what  determination  it  would  receive ;  as  retaining  such  a  bill  is 
evidently  granting  relief  against  a  purchaser. 

(420)  See  Murrmj  v.  Finsler,  2  Johns.  Ch.  Rep.  155,  157. 

(421)  See  Frost  v.  Beekman,  1  Johns.  Ch.  Rep.  288,  301.  J\Iuy~ 
ray  v.  Ballon,  1  Johns.  Ch.  Rep.  556.  Champion  v.  Broicn,  6  Johns. 
Ch.  Rep.  398,  403.  Shepard  v.  M'Evers,  4  Johns.  Ch.  Rep.  136. 
Simoii's  Les.  v.  Gibson,  1  Yeates,  291.  Davison  v.  Waite,  2  Munf. 
527.  And  see  JVillis^  Les.  v.  Bucher,  2  Binn.  455.  Cuyler  v.  Bradt, 
2  Caines'  Cas.  in  Error,  32G.      fVilcox  v.  Calloway,  1  Wash.  Rep.  41. 

(*269) 


QQO  OF  EQUITABLE  UELIEF 

pose  trustees  (ov  preserving  contingent  remainders  to  join 
in  destroying  then),  and  to  convey  the  estate  to  a  pur- 
chaser, if  the  purchaser  buy  for  a  valuable  consideration, 
and  without  notice,  he  cannot  be  affected.  But  if  he  buy 
with  notice  of  the  trust,  although  for  a  valuable  consider- 
ation, he  must  convey  the  estate  to  the  uses  of  the  settle- 
ment(a)(422). 

But  we  may  here  observe,  that  it  is  at  last  settled,  that 
trustees  joining  in  a  recovery  after  the  first  tenant  in  tail 
is  of  age,  is  not  a  breach  of  trust,  and  therefore  a  pur- 
chaser may  safely  buy  under  the  title  acquired  by  tlie 
recovery(6).  This  point  cannot  arise  upon  new  titles, 
for,  as  we  have  seen,  lines  and  recoveries  are  abolished, 
and  the  protector  of  a  settlement  cannot  commit  a  breach 
of  trust  in  joining  with  the  tenant  in  tail  iu  barring  the 
remainders(c). 

A  purchaser  will  be  bound,  even  at  law,  by  a  parol 
agreement  for  a  lease  not  within  the  statute  of  frauds,  the 
granting  of  which  constituted  part  of  the  consideration, 
although  it  be  not  mentioned  in  the  agreement  for  pur- 
chase, and  the  rent  be  not  fixed(c^). 

But  where  the  consent  of  a  person  is  essential  to  the 
validity  of  a  lease  agreed  to  be  granted,  and  he  himself 
purchases  the  inheritance,  although  with  full  notice,  yet 
he  will  not  be  bound  by  the  agreement. 

(*)This  was  decided  in  a  recent  case,  where  a  copy- 
holder granted  a  lease  to  one  Luffkin  for  a  year,  and  so 
from  year  to  year,  if  the  lord  would  give  a  licence.     The 

(o)   Mansell  v.  Mansell,  2  P.  Wms.  678. 

(6)  Biscoe  r.  Perkins,  1  Ves.  &  Bea.  485.  The  Lord  Chancellor 
has  since  decided  the  same  point  in  the  same  way. 

(c)  3  &  4  W.  4,  c.  74  ;  stipra,  vol.  i.  193,  194,  356,  359,  380;  li. 
246. 

(d)  Dean  v.  Cartwright,  4  East,  29. 


(422)    See  Murrmj  v.  Finsfer,  2  Johns.  Ch.  Rep.  155. 

(*270) 


I 


AND  PROTECTION.  oqq 

lord  of  the  manor  purchased  the  reversion  himself,  and 
took  a  surrender  in  the  name  of  a  trustee.  The  terms  of 
the  demise  were  correctly  stated  in  the  abstract  of  the 
title  ;  the  agreement  contained  an  exception  of  all  subsist- 
ing leases  (if  any  there  were),  and  in  a  deed  from  the  ven- 
dor to  the  purchaser's  trustee,  theie  was  an  exception  in 
the  covenant  against  incumbrances  "  of  the  several  and 
respective  subsisting  lease  or  leases,  or  agreements  for 
leases,  under  which  the  present  tenants  now  hold  the 
premises."  After  the  purchase,  the  lord  gave  notice  to 
his  trustee,  that  he  would  not  grant  any  licence  to  any 
copyholder  of  his  manor  to  demise.  The  trustee  then 
gave  notice  to  Luifkin  to  quit,  and  brought  an  ejectment, 
in  which  he  recovered,  the  Court  of  King's  Bench  being 
of  opinion  that  the  lease  did  not  operate  as  a  lease  for 
fourteen  years(e).  Then  Luffkin  tiled  a  bill  against  the 
trustee  and  the  lord  for  a  specific  performance,  on  the 
ground  of  the  lord  having  notice  of  the  lease,  and  of  its 
being  excepted  in  the  contract,  &c.  A  case  was  directed 
to  the  Court  of  Common  Pleas,  who  held,  first,  that  the 
lease  was  not  a  lease  for  fourteen  years  ;  and  secondly, 
that  the  tenant  had  no  remedy  on  the  covenant  in  the 
lease  for  quiet  enjoyment(/j.  The  cause  then  came  on 
upon  the  equity  reserved,  and  was  fully  argued  by 
Komilly  for  the  plaintiff,  and  by  Hoilist  and  liosanquet 
for  the  defendants.  And  Lord  Eldon,  after  taking  a  day 
to  consider,  pronounced  judgment  shortly,  that  there  was 
not  equity  sufficient  to  support  the  bill(^^). 

This  decision  demands  particular  attention.  It  seems 
founded  on  great  principles  of  equity,  although  the  pur- 
chaser had  voluntarily  placed  himself  in  a  situation  in 
(*)which  it  was  his  interest  to  refuse  his  consent,  without 

(e)   Doe  V.  Luffkin,  4  East,  221. 

(/)    1  New  Rep.  163. 

{g)   Ch.  15th  July  1805.  S.  C.  11  Ves.JLin.  170. 

(*271) 


31 Q  OF  EQUITABLE  RELIEF 

which  the  lease  could  not  be  sustained.  We  cannot  fail 
to  distinguish  this  case  from  that  where  a  man,  having  a 
partial  interest  in  an  estate,  agrees  to  grant  a  lease  which 
his  interest  does  not  enable  him  to  grant ;  and  then  joins 
with  the  remainder-man  in  selling  the  estate  to  a  pur- 
chaser, with  full  notice  of  the  agreement.  There  equity 
rightly  holds  the  purchaser  bound  by  the  agreement. 
The  vendor  was  bound  to  grant  the  lease,  or  to  answer  in 
damages  for  non-performance  of  the  agreement ;  and  as 
the  purchaser  had  notice  of  the  contract,  and  takes  an 
estate  which  enables  him  to  perform  it,  it  is  but  just  that 
he  should  be  compelled  to  do  so,  in  order  to  exonerate 
the  vendor  from  an  action  for  breach  of  the  contract. 
And  on  this  ground  it  should  seem,  that  if  in  the  case  of 
Luffkin  V.  Nunn,  Luffkin  could  have  recovered  on  the 
covenant  for  quiet  enjoyment,  the  lord  would  have  been 
compelled  to  perform  the  agreement.  If  this  had  not 
been  Lord  Eldon's  opinion,  he  would  not  have  asked  the 
Court  of  Common  Pleas,  whether  Lufifkin  could  recover 
on  the  covenant  for  quiet  enjoyment  in  case  he  were 
evicted.  Lord  Redesdale  appears  to  have  overlooked 
this  distinction,  when  in  a  late  case  he  found  fault  with 
one  point  in  the  case  of  Taylor  v.  Stibbert,  viz.  that  he 
thought  the  purchaser  had  a  right  to  say,  that  having 
purchased  from  the  son  as  well  as  the  father,  and  the 
covenant  not  being  binding  on  the  son\s  estate,  he  should 
not  be  bound  further  than  as  he  purchased  an  estate 
which  was  bound,  and  therefore  that  notice,  or  no  notice, 
was  of  no  consequence  to  him(A).  The  doctrine,  how- 
ever, can  only  apply  to  cases  where  the  purchaser  ought 
to  indemnify  the  seller  against  the  agreement. 

Where  a  purchaser  buys  a  reversion  expectant  upon 
(*)a  particular  estate,  as,  subject  to  the  life-estate  of/.  S., 
although   it  turn  out  that  no  such  estate  is  in  existence, 

{h)   See  2  Scho.  &  Lef.  699. 
(*272) 


AND  PROTECTION.  01  1 

yet/.  *S.  will  be  decreed  to  hold  the  estate  during  his 
life,  against  the  purchaser(/). 

There  was  a  case  decided  in  Ireland,  where  the  pur- 
chaser set  aside  the  leases  subsisting  at  the  time  of  the 
sale,  and  he  was  decreed  to  be  a  trustee  for  the  vendor(A:). 
And  it  was  treated  as  clear,  that  if  an  estate  be  sold  sub- 
ject to  existing  leases,  and  the  vendor  discover  that  the 
leases  he  had  granted  were  obtained  from  him  by  fraud, 
he  would  be  entitled  to  set  them  aside,  and  to  hold  the 
estate  during  the  continuance  of  such  leases,  paying  the 
rents  to  the  purchaser  thereby  reserved,  and  performing 
the  covenants  in  the  leases(/).  And  upon  this  principle, 
where  a  devisee  in  fee,  subject  to  an  executory  devise 
over  in  fee,  suffered  a  recovery,  and  sold  the  estate,  and 
received  all  the  money,  and  he  and  the  devisee  over 
joined  in  the  conveyance  (which  of  course  operated  as  a 
release  of  the  executory  interest),  subject  to  leases  grant- 
ed by  the  first  devisee,  it  was  decided  that  the  devisee 
over  (the  event  having  happened  upon  which  it  was  to 
arise)  was  entitled  to  impeach  the  leases  for  his  own  be- 
nefit, securing  to  the  purchaser  the  rents  and  the  benefits 
of  the  agreements(m). 

But  all  these  points  are  of  great  importance,  and  will 
require,  it  is  apprehended,  much  further  consideration 
before  they  can  be  adopted  as  binding  rules. 

Although  whilst  lines  operated  a  purchaser  with  notice 
had  to  strengthen  his  estate,  levied  a  fine,  and  five  years 
had  passed  without  a  claim,  yet  the  fine  and  nonclaim 
would  have    been   inoperative  ;  for  as  he  purchased  with 

(t)  Walton  V.  Stanford,  2  Vern.  279.  See  Doe  v.  Archer,  1  Bos. 
&  Pull.  531. 

(fc)   2  Ball  &  Beat.  548. 

(0   2  Ball  &  Beat.  547. 

(m)  Maguire  v.  Armstrong,  2  Ball  &  Beat.  638  ;  see  Blakeney  v. 
Bagott,  3  Bligh,  N.  S.  248. 


012  ^^  EQUITABLE  RELIEF 

(*) notice,  notwithstanding  any  consideration  paid  by  him 
he  was  but  a  tiustee,  and  so  the  estate  not  being  dis- 
placed, the  fine  could  not  l)ar(n)  ;  so,  although  a  man 
purchase  under  a  decree  in  equity,  yet,  if  the  decree  was 
obtained  by  fraud,  he  cannot  protect  himself  (o). 

But  where  it  was  a  mere  legal  title,  and  a  man  had 
purchased  an  estate  which  he  saw  himself  had  a  defect 
upon  the  face  of  the  deeds,  yet  the  fine  would  have  been 
a  bar,  and  not  affect  him  with  notice,  so  as  to  make  him 
a  trustee  for  the  person  who  had  the  right,  because  this 
would  be  carrying  it  much  too  far,  for  the  defect  upon 
the  face  of  the  deeds  was  often  the  occasion  of  the  fine 
being  levied.  This  was  laid  down  by  Lord  Hardwicke(/?). 
And  it  was  resolved  in  Termor's  cRse(q),  that  if  A.  pur- 
chases land  of  B.,  and  afterwards  perceiving  that  B.  had 
but  defeasible  title,  and  that  C.  had  a  right  to  it,  A.(l) 
levies  a  fine  with  proclamations  to  a  stranger,  or  takes 
a  fine  from  another  with  proclamations,  with  the  intent  to 
bar  the  right  of  C.  ;  this  fine,  so  levied  by  consent,  should 
bind,  for  nothing  was  done  in  this  case  which  was  not 
lawful.  Fines  cannot  in  future  be  levied  ;  but  still  with 
reference  to  existing  titles,  it  is  necessary  to  know  what 
the  rule  was.  The  accepting  a  release  of  a  right  is  in 
no  case  an  acknowledgment  that  a  right  existed.  If  it 
were  an  admission  of  right,  it  must  always  be  liable  to 
objections,  because  the  consideration  for  the  release  is 
always  much  less  than  the  value  of  the  thing  demanded  ; 
but  in  truth,  the  consideration  given  being  less  than 
the    value    of    the     thing    demanded,     the    transaction 

(n)  1  Vern,  149  ;  2  Atk.  631  ;  Kennedy  v.  Daly,  1  Scho.  &  Lef. 
365. 

(o)   Kennedy  v.  Daly,  1  Scho.  &  Lef.  335  ;   Giffard  v.  Horf,  ib.  386. 
ip)    2  Atk.  631  ;   and  see  ib.  390. 
iq)   3  Rep.  79,  a. 


(I)  B.  is  by  mistake  inserted  in  the  report  for  A. 

(*273) 


AND  PROTECTION-.  «,« 

(*)amounts  to  a  denial  of  the  right,  instead  of  an  acknovv- 
ledgment(/). 

Notice,  before  actual  })ajineiit  of  all  the  money, 
although  it  be  becured(6)(423),  and  the  conveyance  actu- 
ally executed(/)(424),  or  before  the  execution  of  the  con- 
veyance, notwithstanding  that  the  money  be  paid(M)(425j, 
is  equivalent  to  notice  before  the  contract. 

But  if  the  conveyance  be  executed,  and  the  money 
paid,  a  purchaser  \>ill  not  be  affected  by  notice  of  an 
incumbrance,  although  a  prior  incumbrance,  intended  to 
be  discharged,  is  not  paid  off  (r). 

And  notice  at  the  time  of  getting  in  a  j)recedent 
incumbrance,  as  a  protection  against  mesne  charges,  is 
not  material,  so  that  he  had  not  notice  at  the  time  of  the 
purchase(?t;)(426).  Indeed,  after  a  conveyance  is  execut- 
ed, it  is  seldom  that  a  purchaser  thinks  of  procuring  a 
prior  legal  estate,  unless  he  discovers  some  incumbrance  on 
the  estate,  against  which  he  is  anxious  to  protect  himself. 

But  although  a  purchaser  has  notice  of  an  equitable 
claim  by  which  his  conscience  is  affected,  yet  a  person 
purchasing  from  him  bonajule,  and  without  notice  of  the 
right,  will  not  be  bound  by  it(a;)(427). 

(r)    Underwood  r.  Lord  Couitown,  2  Scho.  &  Let".  68. 
(»)   Tourville  v.  Naish,  3  P.  Wms.  307  ;  Story  v.  Ld.  Winsor,  2  Atk. 
630 ;   More  v.  Mayhevv,  1  Cha   Ca.  34  ;  2  Freem.  175,  pi.  235. 
(/)  Jones  V.  Stanley,  2  Eq.  Ca.  Abr.  685,  pi.  9. 
(u)   Wigg  V.  Wigg,  1  Atk.  364. 
(r)  Meynell  v.  Garraway,  Nels.  Cha.  Rep.  63. 
(tp)   Cockes  V.  Sherman,  2  Freem.  13  ;  and  see  2  Ves.  574. 
(x)  Ferrars  v.  Cherry,  2  Vern.  384  ;   Merlins  r.  Joliffe,  Ambl.  313  ; 

(423)  See  Frost  v.  Beckman,  1  Johns.  Ch.  Rep.  288.  301.  Blair 
V.  Owles,  1  Munf.  38.  And  See  Lewis  v.  J^Iaddisoiis,  1  Munf.  303. 
Jewell  V.  Pabnev,  7  Johns.  Ch.  Rep.  65. 

(424)  See  Hoover  v.  Donally,  3  Hen.  &  Munf.  316. 

(425)  See  Wilcox  v.  Calloicaij,  1  Wash.  Rep.  41. 

(426)  See  Jackson  v.  Giveiis,  8  Johns.  Rep.  105.  2d  edit. 

(427)  See  Demarest  \.  fVinkoop,  3  John?.  Ch.   Rop.  147.     Jackson 
VOL.   II.  40  (*274; 


^1^        OF  EQUITABLE  RELIEF  AND  PROTECTION. 

So,  on  the  other  hand,  a  person  with  notice  of  an  equi- 
table claim,  may  safelj  purchase  of  a  person  who  bought 
bona  Jide,  and  without  notice  of  ix(y) ;  although  this 
(*)circumstance  may  influence  the  Court  witli  respect 
to  costs(z)(I).  This  rule  is  consistent  with  the  others  ; 
it  is  not  in  favor  of  the  purchaser  with  notice,  but  of  the 
purchaser  without  notice.  If  a  different  rule  prevailed, 
he  might  not  be  able  to  sell  the  estate(428). 

It  still  remains  to  show  what  will  be  deemed  sufficient 
notice  to  a  purchaser;  but  the  importance  of  this  subject 
seems  to  demand  a  separate  chapter. 

Lowther  r.  Carleton,  MS.  Barnard.  Rep.  Cha.  358  ;  Forrester,  187  ; 
2  Atk.  242.     See  Pitts  r.  Edelph,  Toth.  284. 

(y)  Harrison  v.  Forth,  Prec.  Cha.  51  ;  1  Eq.  Ca.  Abr.  331,  pi.  6; 
Brandling  v.  Ord,  1  Atk.  571  ;  Sweet  i'.  Southcote,  2  Bro.  C.  C.  66  ; 
2  Dick.  671  ;  Lowther  v.  Carleton,  2  Atk.  242 ;  Andrew  v.  Wrigley, 
4  Bro.  C.  C.  125. 

(2)   Andrew  v.  Wrigley,  4  Bro.  C.  C.  125. 


(I)  In  Grounds  and  Rudiments  of  Law  and  Equity,  p.  275,  tit.  377, 
Lord  Talbot  is  erroneously  stated  to  have  held  in  Lowther  v.  Carleton, 
that  where  a  purchaser  with  notice  conveys  to  anolher  without  notice, 
the  second  sale  was  vicious,  because  of  the  former  conveyance  being, 
with  notice  ;  and  the  author  of  that  book  warmly  espouses  the  doc- 
trine. 

V.  Given,  8  Johns.  Rep.  105.  2d  edit.  Bebee  v.  Bank  of  JYew-Yorky 
1  Johns.  Rep.  573,  574.  See  also  Lacey  v.  Wilson,  4  Munf  313. 
Jackson  v.  Heni-y,  10  Johns.  Rep.  185. 

(428)  See  Bumpus  v.  Plainer,  1  Johns.  Cb.  Rep.  213,  219.  Mex- 
ander  v.  Pendleton,  8  Cranch,  462. 

(*276) 


[  315  ] 


OCHAFTER  XVII. 


OF    NOTICE. 


Notice  is  either  actual  or  constructive  ;  but  there  is 
no  difference  bet-ween  actual  and  constructive  notice  in 
its  consequences(«). 

I.  Of  actual  notice  little  can  be  said.  It  requires  no 
definition,  and  it  need  only  be  remarked,  that,  to  con- 
stitute a  binding  notice,  it  must  be  given  by  a  person 
interested  in  the  proj3erty,  and  in  the  course  of  the 
treaty  for  the  purchase(429).  Vague  reports  from  persons 
not  interested  in  the  property,  will  not  affect  the  purchas- 
er's conscience  ;  nor  will  he  be  bound  by  notice  in  a  pre- 
vious transaction  which  he  may  have  forgotten. 

That  vague  reports  from  strangers  are  not  notice,  was 
decided  in  the  case  of  Wildgoose  v.  Weyland(6),  where 
one  man  came  to  a  person  about  to  buy  a  house,  and  told 
him  to  take  heed  how  he  bought  it,  for  the  vendor  had 
nothing  in  ii,  but  upon  trust  for  A.  :  and  another  person 
came  to  him,  and  told  him  it  was  not  so,  for  the  vendor 
was  seised  of  the  land  absolutely.  The  information  of 
the  first  proved  correct,  yet  the  purchaser  was  held  not 
to  have  notice :  because  such  flying  reports  were  many 
times  fables,  and  not  truth ;  and  if  it  should  be  admitted 
for  a  sufQcient  notice,  then  the  inheritance  of  every  man 
might  easily  be  slandered. 

(a)   See  Ambl.  626. 

(fe)   Goulds,  147,  pi.  67 ;  and  Cornvvallis's  case,  Toth.  254. 

(429)   See  ^irgenbrischt  v.  Campbell,  3  Hen.  &  Munf.  144. 

(*276) 


316 


OF  NOTICE. 


And  not  only  a  more  assertion,  that  some  other  person 
claims  a  title  is  not  suflicient,  but,  ])erhaps,  a  general 
(*)claiin  is  not  sufiicient  to  affect  a  purchaser  with  notice 
of  a  deed,  of  whicii  he  does  not  appear  to  have  had 
knovvledge(c). 

However,  no  person  could  be  advised  to  accept  a  title 
concerning  which  there  were  any  such  reports,  or  asser- 
tions, without  having  them  elucidated  ;  because  what  one 
Judge  might  think  a  flying,  vague  report,  or  a  mere  asser- 
tion, another  might  deem  a  good  notice.  For  instance, 
in  Fry  v.  Porter(c?),  Hale,  C.  B.  in  speaking  of  the  point 
of  notice  in  that  case  (which,  however,  did  not  relate  to 
a  purchaser),  said,  "  here  are  several  circumstances  that 
seem  to  show  there  might  be  notice,  and  a  public  voice  in 
the  house,  or  an  accidental  intimation,  &c.  may  possibly 
be  sufficient  notice"(430). 

(c)  See  Jolland  v.  Staiiibiidge,  3  Yes.  jun.  478. 

{(l)    1  Mod.  300.      See  Butcher  v.  Stapely,  1  Vern.  363. 


(430)   See  Cwrrens  V.  //arf.  Harden,  37. 

"  There  may  be  circumstances  which  throw  a  duty  on  the  tenant  in 
possession  ;  such  for  instance  as  are  alleged  in  this  case  ;  a  sale  of  the 
land  by  the  sheriff,  as  the  property  of  Procter,  whose  tenant  Covert 
was  said  to  be,  Covert  standing  by,  and  not  contradicting  it.  And  if 
Covert  did  so  stand  by,  knowing  that  he  was  represented  as  Procter's 
tenant,  and  not  contradicting  it,  he  could  not  afterwards  contest  the  title 
of  Procter  with  the  parchaser."  (Per  Tilghman,  C.  J.  in  Covert  et  al. 
V.  Irwin  et  al.  3  S.  &  R.  289.) 

In  Plumer  v.  Robertson  et  al.  6  ib.  179.,  where  the  defendant  Ro- 
bertson having  a  mortgage  on  an  estate,  entered  into  articles  for  the 
purchase  of  the  premises  ;  and  entered  into  possession.  The  mort- 
gagee soon  after  left  the  country  ;  and  the  plaintiff  having  received  a 
deed  from  the  mortgagee,  the  question  arose  whether  Robertson's  claim 
under  the  articles  ought  to  be  postponed  lo  that  of  the  plaintiff.  There 
were  two  points  on  v.hich  the  cause  turned.  1.  Had  the  plaintiff  no- 
tice of  the  defendant's  agreement  ;  and  the  charge  to  the  jury  was  that 
the  possession  of  R.  amounted  to  constructive  notice  of  the  agreement. 
2.  Were  the  articles  rescinded  by  his  proceedings  on  scire  facias  de- 
claring that  he  held  under  the  mortgage  1  The  Court  granted  a  new 
(*277) 


OF  NOTICE. 


317 


That  the  notice  to  the  purchaser  must  be  in   the  same 
transaction,  seems  to  have  been  settled  in  a  case(e),  upon 

(e)   See  East  Crreenstead's  case,   Duke,  64  ;  and  the  cases  infya,  as 
to  notice  to  an  agent.     See  1  Ves.  jun.  425. 

trial  on  the  ground  of  error  in  the  charge  in  respect  to  construciive  no- 
tice. The  possession,  was  a  circumstance  for  the  jury,  but  was  not 
ipso  facto,  a  legal  presumption  of  notice.  The  point  on  which  the  cause 
should  have  been  submitted  to  the  jury,  was,  whether  actual  notice  of 
the  articles  of  agreement  was  given  to  the  plaintiff.  Tf  the  plaintiff 
knew  that  fact,  which  amounted  in  equity,  to  a  sale  to  Robertson,  he 
should  not  have  purchased  :  if  he  went  on  with  notice  to  purchase,  it 
was  at  his  peril. 

If  the  second  purchaser  has  notice  of  the  first  conveyance,  his  pur- 
chase is  a  fraudulent  act.  This  notice  may  be  express  or  it  may  be 
implied  from  the  first  purchaser  being  in  the  open  and  exclusive  pos- 
session of  the  estate.  2  Mass.  506.  The  notice  to  affect  a  purcha- 
ser, should  be  actual,  circumstantial,  in  the  transaction,  by  the  party  in 
interest  ;  for  there  can  be  no  implied  notice  :  the  clear  notice  required 
by  the  law,  is  actual,  has  a  real  form,  to  be  established  by  direct  proof. 
A  purchaser  of  the  legal  title  cannot  be  affected  by  any  latent  equity 
of  which  he  has  not  actual  notice,  or  which  does  not  appear  on  some 
deed  necessary  to  the  deduction  of  his  title.  1  Wash.  4.  The  strong- 
est case  which  can  be  put,  is  that  of  a  conveyance  registered  in  the 
proper  county  without  due  proof ;  yet  this  is  not  notice,  nor  to  be  left 
to  a  jury  from  which  to  imply  notice.  Heister  r.  Fortner,  2  Binn.  40. 
It  must  be  proved  that  he  knew  exactly  the  state  of  the  party  having 
the  equity,  and  knowing  that,  acquired  the  legal  estate.  The  evidence 
of  notice  ought  to  amount  to  actual  fraud,  and  must  be  very  clearly  prov- 
ed. The  true  ground  in  cases  of  notice,  is,  that  in  itself  it  is  a  species  of 
fraud,  and  takes  the  bona  fides  of  the  purchaser,  and  puts  him  in  mala 
fide.  In  Peebles  v.  Reading,  8  S.  &  R.  484,  in  which  these  principles 
were  recognized,  the  case  was  thus :  Reading  sued  in  ejectment  for 
76  acres  of  land  of  which  he  had  been  the  owner.  The  land  in  question 
was  sold  by  the  sheriff  to  Turner  for  71  dollars,  when  it  was  worth 
eight  or  ten  dollars  by  the  acre.  The  next  year  Turner  moved  on  to 
the  land  ;  and  in  the  subsequent  year  Reading  moved  off.  Turner 
erected  buildings,  made  improvements,  and  in  about  six  years  sold  the 
land  to  Peebles  for  twenty  dollars  per  acre,  who  entered  into  posses- 
sion. Turner,  the  purchaser  declared  before  and  after  the  sheriff's 
sale,  that  he  had  bought  for  Reading,  and  would  let  him  have  back  the 
estate,  if  he  paid  him  the  money.     Peebles,  however,  never   made  any 


318 


OF  NOTKUV 


the  statute  of  charitable  iises(/),  the  tacts  of  which  were, 
that  land    given  to  charitable  uses  was  intended  to  be 

(/)  Supra,  vol.  2.  p.  IS2. 


such  declaration.  The  jury  under  instructions  from  the  court  returned 
a  verdict  for  the  plaintiff,  the  Court  in  error  reversed  the  judgment  and 
o-ranted  a  new  trial.  The  Court,  Duncan,  J.  "  That  the  act  for  the 
prevention  of  frauds  and  perjuries,  though  copied  from  the  English 
statute,  omits  the  7th  section  respecting  trusts.  And  from  the  cases 
of  German  v.  Gabbald,  3  Binn.  304,  and  Wallace  et  al.  2  S.  &  R.  521, 
it  would  seem,  that  the  act  did  not  prevent  any  declaration  of  trust  be- 
ing made  by  parol.  The  provisions  of  the  act,  seemed  rather  to  apply 
to  legal  than  trust  estates,  and  there  was  nothing  to  prevent  parol  proof 
by  which  a  trust  might  be  inferred  ;  and  even  did  the  statute  apply  in 
cases  of  fraud,  and  where  transactions  have  been  carried  on  mrt/a^de, 
there  is  a  resulting  trust  by  operation  of  law.  This  is  not  a  resulting, 
within  the  English  statute  ;  for  if  a  man  employs  another,  by  parol,  as 
his  agent  to  buy  an  estate  for  him,  and  the  agent  buys  and  pays  for Tt 
with  his  own  money,  and  takes  the  conveyance  in  his  own  name, 
it  would  not  be  a  resulting  trust.  Bartlett  v.  Pickersgill,  4  Burr. 
2255.  In  Botsford  v.  Burr,  2  Johns.  Ch.  R.  405,  resembles  this, 
where  it  was  held  that  one  who  sets  up  such  a  trust,  on  a  sale  of  his 
property  on  a  mortgage,  unless  he  has  paid  part  of  the  considera- 
tion money,  will  not  be  allowed  to  shew  by  parol,  that  the  purchase  was 
made  for  his  benetit.  Though  parol  evidence  is  admissible  in  this 
state  ;  yet  it  should  be  received  with  caution.  But  the  length  of  time 
would  amount  to  a  waiver  had  there  been  an  agreement  in  writing  to 
reconvey.  In  Youst  v.  Martin,  3  S.  &  R.  429,  it  is  truly  said,  that 
a  court  of  equity  will  not  force  a  man  to  give  up  his  possession  under 
circumstances  of  long  acquiescence,  without  reimbursing  the  money  he 
has  paid;  or  if  the  improvements  be  expensive,  or  the  lapse  of  time 
great,  would  he  be  compelled  to  give  it  up  at  all.  Peebles  is  a  pur- 
chaser six  years  after  sheriff's  deed  acknowledged,  five  years  after 
possession  delivered  to  Turner,  with  improvements  made  to  five  times 
the  amount  of  the  original  purchase  ;  and  having  paid  more  than  seven 
times  the  amount  of  the  original  purchase  money.  This  trust  neither 
appeared  by  any  writing,  nor  did  the  possession  continue  in  the  cestui 
que  trust.  No  notice  that  is  conclusive.  And  as  relief  could  be  grant- 
ed only  on  account  of  Peebles'  fraud,  and  that  fraud  consisting  of  a 
purchase  with  notice  of  the  trust,  it  must  be  made  out  by  clear  proof 
of  actual  notice.  A  mere  knowledge  or  report  that  Turner  had  declar- 
ed he  had  bought  for  Reading  will  not  do  after  this  lapse  of  time. 


OF  NOTICE.  c>.q 

sold  bj  act  of  parliament,  and  when  the  bill  was  read  in 
parliament,  it  was  declared,  that  the  land  was  chargeable 
with  a  charitable  use,  and  an  offer  was  made  to  other- 
wise assure  the  charitable  use.  The  bill,  however,  did 
not  pass,  and  the  land  was  afterwards  sold  to  one  of  the 
members  of  the  House,  who  spoke  in  the  debate  on  the 
bill ;  yet  this  notice  was  held  not  to  be  sufficient  notice, 
because  it  was  not  known  to  the  purchaser,  except  as 
a  member  of  parliament. 

It  may  be  here  proper  to  mention,  that  an  action  on  the 
case  for  slander  of  the  vendor's  title  will  not  lie  against 
a  person  for  giving  notice  of  his  claim  upon  an  estate, 
either  by  himself  or  his  attorney,  at  a  public  auction,  or 
(*)to  any  person  about  to  buy  the  estate  ;  although  the 
sale  be  thereby  prevented(^^)  ;  and  to  sustain  the  action, 
malice  in  the  defendant  must  be  proved(/i). 

(o)   Hargrave  v.  Le  Breton,  4  Burr.  2422. 

(/i)   Smith  V.  Spooner,  3  Taunt.  246.   See   Rowe  v.   Roach,  1    Mau. 

In  Jackson  v.  ValUenburgh,  8  Cowen,  260,  the  inquiry  was  how 
particular  and  certain  the  notice  must  be,  which  should  be  deemed 
equivalent  to  a  registry  ?  The  case  there  was  that  the  attorney  who  had 
directions  to  obtain  an  assignment  of  u  mortgage  had  been  informed 
generally  bf  a  prior  mortgage  :  but  could  tind  no  registry,  except  the 
registry  of  an  assignment  of  the  mortgagor's  interest  in  book  of  deeds, 
the  Supreme  Court  held,  that  this  was  not  sufficient  notice.  That  fact 
alone  was  not  enough  to  put  a  party  on  inquiry.  Woodworth,  J.  said. 
The  notice  may  have  answered  to  put  a  person  on  inquiry,  in  a  case 
where  that  species  of  notice  is  sufficient;  but  to  supply  the  place  of  a 
registry,  the  law  proceeds  a  step  farther  ;  for  if  the  second  mortgage  is 
not  registered  as  bona  fide,  because,  in  consequence  of  notice,  it  is 
tainted  with  frand,  that  imputation  must  be  supported  by  clear  evidence. 
The  registry  of  an  absolute  conveyance  which  the  attorney  found  was 
not  sufficient,  because  here  the  claim  is  in  the  nature  of  a  mortgage, 
in  consequence  of  the  defeasance  that  accompanied  it.  It  was  therefore 
not  sufficient  notice  of  a  mortgage.  Jolland  r.  Stainbridge,  3  Yes.  478  ; 
Hine  v.  Dodd,  2  Atk.  276.  The  case  of  Jackson  v.  Burgott,  10  Johns. 
457,  proceeds  on  the  same  ground.  Actual  notice  was  held  neces- 
sary.    So  also  in  Dunham  v.  Dey,  18  ib.  556. 

(*278) 


320 


OF  NOTICE. 


Nor  will  the  action  lie  against  the  attorney,  although 
he  do  not  deliver  the  precise  message  of  his  principal, 
provided  it  be  to  the  same  eftect. 


II.  Constructive  notice,  in  its  nature,  is  no  more  than 
evidence  of  notice,  the  presumptions  of  which  are  so  vio- 
lent, that  the  Court  will  not  allow  even  of  its  being  con- 
trovert ed  (2)  (431) ;  but  it  is  difficult  to  say  what  will 
amount  to  constructive  notice.  The  following  rules  may, 
perhaps,  assist  the  learned  reader  in  his  researches. 

1.  Notice  to  the  counsel,  attorney,  or  agent  of  the  pur- 
chaser, is  notice  to  him(/c)(432)  ;  for  otherwise,  as  Lord 
Talbot  observed,  a  man  who  had  a  mind  to  get  another's 
estate,  might  shut  his  own  eyes,  and  employ  another  to 
treat  for  him  who  had  notice  of  a  former  title  ;  which 
would  be  a  manifest  cheat(/).  And  the  same  rule  pre- 
vails, although  the  counsel,  attorney  or  agent,  be  the  ven- 
dor(m)(433),  or  be  concerned  for  both  vendor  and  pur- 
chaser(n). 

So  notice  to  the  town  agent  of  the  purchaser's  attorney 
in  the  country,  is  also  notice  to  the  purchaser(o). 

and  Selw.  304 ;  Pitt  r.  Donovan,  ib.  639  ;  Robertson  v.  M'Doiigall, 
4  Bingh.  670. 

(t)   See  2  An.str.  438  ;  jjer  Eyre,  C.  B. 

(k)  Newslead  v.  Searles,  1  Atk.  265  ;  Le  Neve  v.  Le  Neve,  3  Atk. 
646;  iVes.  64;  Brotherton  v.  Hatt,  2  Vern.  574  ;  Ashley  v.  Baillie, 
2  Ves.  368 ;  Maddox  v.  Maddox,  1  Yes.  61  ;  and  see  3  Cha.  Ca.  tlO  ; 
Tunstall  v.  Trappes,  3  Sim.  301. 

(0  Attorney-General  r.  Gower,  2  Eq.  Ca.  Abr.  685,  pi.  11.  See 
Ambl.  626. 

(m)  Sheldon  v.  Cox,  Ambl.  624. 

{n)  Le  Neve  v.  Le  Neve,  3  Atk.  646. 

(o)   Norris  v.  Le  Neve^  3  Atk.  26. 


(431)  See  Billington  v.  Welsh,  5  Binn.  132. 

(432)  See  Jistor  v.  Wells,  4  Wheat.  466,  487.     Jackson  v.  Sharp,  9 
Johns.  Rep.  162,  168,  169.  and  see  Blair  v.  Owles,  1  Munf.  38. 

(433)  See  Blair  v.  Oxvles,  ut  supra. 


OF  NOTICE.  o^i 

And  it  is  immaterial  that  the  purchase  is  made  under 
(*)the  direction  of  a  court  of  equity  ;  and  infants  are 
equally  bound  u  ith  adults(/;). 

And  if  a  person,  with  notice  of  any  claim,  purchase  an 
estate  in  the  name  of  another,  without  his  consent,  yet  if 
he  afterwards  assent  to  it,  lie  is  bound  by  tiie  notice  to  his 
agent(^).  So  a  man  cannot  elude  the  effect  of  having 
notice,  by  procuring  the  conveyance  to  be  made  to  a  third 
person  (r). 

But  although,  if  a  man  purchase  an  estate  which  is 
subject  to  an  equity  only,  of  which  he  or  his  agent  has 
notice,  it  is  a  fraud  ;  yet,  if  an  instrument  is  signed  by  all 
parties,  the  intention  cannot  be  interpreted,  contrary  to 
such  instrument,  by  notice  to  an  agent,  that  some  of  the 
parties  had  such  intention(5). 

Although  the  counsel,  attorney  or  agent,  be  employed 
only  in  part,  and  not  throughout  the  transaction,  the  pur- 
chaser is  equally  affected  by  the  notice.  This  was  doubted 
in  the  case  of  Vane  v.  Lord  Barnard  (i)  ;  but  in  the  later 
case  of  Burv  v-  Bury,  before  Lord  Hardwicke(w),  he  said, 
"  where  an  agent  has  been  employed  for  a  person  in 
part  and  not  throughout,  yet  that  affects  the  person  with 

notice." 

The  notice  to  the  counsel,  attorney  or  agent,  must,  how- 
ever, be  in  the  same  transaction  ;    because  he  may  very 

(p)  Toulmin  v.  Steere,  3  Mer.  210.  A  petition  for  rehearing  was 
presented,  which  was  afterwards  withdrawn  under  circumstances  not 
connected  with  the  legal  points  in  the  case. 

(g)  Merry  V.  Abney,  1  Cha.  Ca.  38  ;  1  Eq.  Ca.  Abr.  330  ;  2  Freem. 
161  ;  Nels.  Cha.  Rep.  69  ;  Jennings  v.  Moore,  2  Vern.  609  ;  1  Bro. 
P.  C.  244. 

(r)   Coote  V.  Mammon,  5  Bro.  P.  C.  by  Tomlins,  365. 

(s)  See  1  Bro.  C.  C.  351. 

(<)   Gilb.  Eq.  Rep.  6.    See  2  Pow.  Mort.  597,  598,  4th  edit. 

(u)   Chan.  11th  July  1748,  Ms.  Appendix,  No.  27. 

41  (*279) 


^22  ^^  NOTICK. 

easily  have  forgotten  \t(v)  ;  and  if  this  were  not  t!ie  rule 
(*)of  the  Court,  it  would  be  of  dangerous  consequence,  as 
it  would  be  an  objection  against  tlie  most  able  counsel, 
because  of  course  they  would  be  more  liable  than  others 
of  less  eminence  to  have  notice,  as  they  are  engaged  in  a 
great  number  of  affairs  of  tliis  kind(,i).  The  same  rule  of 
course  applies  to  the  purchaser  himself.  If  a  man  pur- 
chases an  estate,  under  a  deed,  which  happens  to  relate 
also  to  other  lands  not  comprised  in  that  purchase,  and 
afterwards  purchases  the  other  lands  to  which  an  apparent 
title  is  made,  independent  of  that  deed,  the  former  notice 
of  the  deed  will  not  of  itself  affect  him  in  the  second 
transaction,  for  he  was  not  bound  to  carry  in  his  recol- 
lection those  parts  of  a  deed  which  had  no  relation  to 
the  particular  purchase  he  was  then  about,  nor  to  take 
notice  of  more  of  the  deed  than  affected  his  then  pur- 
chase (y)  (434). 

2.  A  public  act  of  parliament  binds  all  mankind  ;  but  a 
private  act  of  parliament  is  not,  of  itself,  notice  to  a  pur- 
chaser(2).  And  it  is  conceived,  that  an  a^t  of  parliament 
of  a  private  nature,  but  made  a  public  act(I),  in  order  that 
it  might  be  judicially   taken  notice  of,  instead  of  beino- 

(r)  Preston  V.  Tubbin,  1  Vern.  286;  Fitzgerald  v.  Faucnnberije, 
Fitzgib.  297  ;  2  Eq.  Ca.  Abr.  682,  (D.)  n  (b.)  ;  Warwick  v.  War- 
wick, 3  Atk.  291  ;  Worsley  v.  Eail  of  Scarborough,  3  Atk.  392;  Steed 
V.  Whitaker,  Barnard.  Cha.  Kep.  220  ;  Hine  v.  Dodd,  2  Atk.  275  ; 
Lowther  v.  Carleton,2  Atk.  242,  S.  C.  MS. ;  AA\\ey  v.  Baillie,  2  Vts. 
368.     See  1  Yes.  435. 

{x)  Per  Lord  Hardwicke,  2  Atk.  242. 

(y)  Hamilton  v.  Royse,  2  Scho.  &  Lef.  327.  Per  Lord  Uedesdale  ; 
Mountford  v.  Scott,  3  Madd.  34. 

(z)  See  2  Ves.  480. 

(I)  This  will  not  happen  in  future,  for  it  has  been  resolved  that  a 
private  act  shall  not  be  made  a  public  act ;  but  it  may  be  enacted,  that 
the  act  shall  be  printed  by  the  king's  printer,  and  that  a  printed  copy  of 
it  shall  be  evidence. 


(434)   See  Murray  v.  Ballon,  1  Johns.  Ch.  Rep.  5Q6,  574. 
(*280) 


OF  NOTICE.  ooo 

Specially  pleaded,  and  to  save  the  expense  of  an  attested 
copy,  would  not  be  deemed  such  a  public  act  as  to  be,  of 
itself,  notice  to  a  purchaser(a). 

(*)3.  Lis  pendens  is  of  itself  notice  to  a  purchaser(6), 
unless  it  be  collusive,  in  which  case  it  will  not  bind 
him(c)(435),  but  it  is  not  of  itself  notice  for  the  purpose 
of  postponing  a  registered  deed(</)(436). 

(a)   See  3  Bos.  &  Pull.  578. 

(6)  See  Toth.  4-5  ;  Yeavely  r.  Yeavely,  Toth.  227 ;  3  Cha.  Rep. 
25^  Digs  V.  Boys,  Toth.  254  ;  Culpepper  v.  Ashton,  2  Cha.  Ca.  116. 
233  ;  Barns  v.  Canning,  1  Cha.  Co.  300 ;  Sorrell  v.  Carpenter,  2  P. 
Wms.  4S2  ;  and  see  3  P;  Wins.  117  ;  Garth  v.  Ward,  2  Atk.  174  ;  3 
Barnard.  Rep.  Cha,  450  ;  Worslej  v.  Earl  of  Scarborough,  3  Atk.  392  ; 
Walker  I'.  Smahvood,  Ambl.  676  ;  5  Co.  47,  b.  ;  Hill  v.  Worsley,  Hard. 
320  ;  Goldson  v.  Gardiner,  1  Yern.  459,  cited  ;  the  Bishop  of  Win- 
chester V.  Pame,  11  Yes.  jun.  194. 

(c)  2  Cha.  Ca.  116. 

[d)  19  Yes.  jun.  439. 

(435)  See  JVIiirray  v.  Ballon,  1  Johns.  Ch.  Rep.  566.  JVItirray  v. 
Finst'er,  2  Johns.  Ch.  Rep.  155.  Hcatley  v.  Finsler,  2  Johns.  Ch. 
Rep.  15S.      Green  v.  Slayter,  4  Johns.  Ch.  Rep.  38.      Walker  v.  Butz, 

1  Yeates,  574.     And  see  Watlington  v.  Hoioley,  1  Des.  170,  in  note. 

(436)  See   J\'lurray  v.  Ballon,  1  Johns.  Ch.  Rep.  576. 

"  In  a  court  of  equity,  a  judgment  which  is  only  a  general  and  not 
a  specific  lien  upon  the  real  estate  of  the  debtor,  will  be  so  controlled 
as  to  protect  the  prior  equitable  rights  of  third  persons  against  the  legal 
lien  of  the  judgments,  and  also  against  purchasers  under  an  execution 
thereon,  chargeable  with  either  actual  or  constructive  notice  of  such  equi- 
table rights.      Ex  parte 'Howe,  1  Paige's  R.  125.      Hampson  r.  Edelen, 

2  H.  &  J.  64.  1  Atkinson  on  Cov.  512.  Where  the  vendee  of  the 
judgment  is  in  the  actual  possession  of  the  premises,  under  a  contract  to 
purchase,  executed  prior  to  the  docketing  of  the  judgment,  the  pur- 
chaser at  the  sheriff's  sale  will  be  chargeable  with  constructive  notice  of 
the  equitable  rights  of  such  vendee,  and  will  take  the  legal  title,  subject 
to  the  same.  Tuttle  t'.  Jackson,  6  Wend.  R.  213  ;  Buck  v.  Hallow- 
way's  Devises,  2  J.  J.  Marsh.  R.  189  ;  Chesterman  v.  Gardner,  5  J. 
Ch.  R.  33  ;  and  in  such  a  case,  if  the  whole  of  the  purchase  money 
had  been  paid  at  the  time  of  the  recovery  of  the  judgment,  or  had 
been  specifically  appropriated  to  the  payment  of  prior  incumbran- 
ces on  the  premises,   there  could   be   no  doubt   that   the   purchaser  at 

(^281) 


Q24  ^^  NOTICE. 

A  subpoena  served,  is  not,  however,  a  sufficient  lis  pen- 
dens unless  a  bill  be  filed(e)  ;  but  when  the  bill  is  filed,  the 

(e)  Anon.  1  Vern.  318. 

the  sheriff's  sale  would  be  considered  in  equity  as  holding  the  legal 
title  in  trust  for  the  original  vendee  ;  and  upon  a  proper  applica- 
tion to  the  court  of  chancery,  he  would  be  restrained  from"  prosecu- 
ting a  suit  at  law  against  such  vendee,  or  his  assigns  to  recover* the 
possession  of  the  property.  Per  the  Chancellor  in  Parks  v.  Jack- 
son, 1 1  Wend.  R.  442,  where  it  appeared  that  before  the  bill  in  chan- 
cery was  filed,  the  persons  under  whom  Parks  holds,  had  made  con- 
tracts with  the  owner  of  the  premises,  entered  into  possession  and 
made  improvements  ;  but  the  deeds  were  executed  pendente  lite.  The 
question  was  whether  the  deeds  of  conveyance  were  void  on  the  ground 
of  the  lis  pendens.  The  Supreme  Court  considered  the  question  as 
settled  in  the  case  of  Jackson  v.  Andrews  et  al.  7  Wend.  152  :  and 
that  a  party  not  only  cannot  purchase  after  the  lis  pendens  ;  but  he  can- 
not carry  into  effect  a  purchase  made  but  unexecuted  at  the  time  of 
the  filing  the  bill.  The  Chancellor  also  in  the  Court  of  Errors  voted  to 
affirm  the  judgment  '  upon  the  legal  merits  of  the  case,  and  considering 
that  the  equitable  rights  of  the  parties  cannot  be  decided  in  an  ejectment 
suit.'  He  remarked  that  '  as  the  legal  title  alone  is  in  question  in  this 
suit,  it  is  not  necessary  to  express  any  definite  opinion  as  to  the  legal 
lien  of  a  judgment  recovered  against  the  vendor  in  a  prior  contract  of 
ssXq  upon  the  unpaid  purchase  money.  In  Pennsylvania,  where  every 
equitable  as  well  as  legal  interest  in  land  is  settled  by  action  at  law,  it 
has  been  decided  that  judgment  against  a  vendor  who  has  contracted 
to  sell  but  has  not  received  the  whole  purchase  money,  is  a  lien  on  the 
vendor's  interest ;  and  that  a  purchaser  under  such  judgment  will 
stand  in  the  place  of  the  vendor,  and  will  be  entitled  to  the  unpaid  pur- 
chase money  ;  and  upon  payment  of  the  same,  nvill  be  bound  to  make 
a  deed  to  the  vendee,  according  to  the  original  agreement.  Fasholt 
V.  Reed,  16  S.  &  R.  267.  In  Maryland,  on  the  contrary,  it  appears  to 
have  been  held,  that  the  vendee  who,  subsequently  to  the  recovery  of  a 
judgment  against  his  vendor,  but  without  any  actual  notice  thereof,  had 
paid  over  a  balance  of  the  purchase  money,  and  taken  a  conveyance 
from  such  judgment  debtor,  was  in  equity  entitled  to  protection  against 
the  claim  on  the  part  of  the  judgment  creditor,  to  a  legal  lien  on  the 
premises.  Hampson  v.  Edelen,  2  H.  &  J.  R.  64.  The  last  case, 
however,  shows  that  a  subsequent  conveyance  from  the  judgment 
debtor,  in  pursuance  of  his  contract,  does  not  at  law  overreach  the 
judgment  by  relation,  and   that   the  vendee  must  resort  to  a  court  of 


OF  NOTICE. 


325 


lis  pendens  begins  from  the  service  of  the  subpceiia(4S7). 
And  the  question  must  relate  to  the  estate,  and  not  merely 

equity  to  protect   himself   against  a  sale  under  the  judgment,   which 
would  render  the  conveyance  from  his  vendor,  subsequent  to  the  dock- 
eting of  the  judgment,  inoperative  in  a  court  of  law.     This  was  also 
expressly  decided  in  Butts  v.  Chinn,  in  the  Court  of  Appeals  in  Ken- 
tucky, 4  J.  J.   Marsh.   R.   641,  where  the  purchaser  at  the  sheriff's 
sale  was  permitted  to  recover  in  ejectment,  on  the  ground  that  the  con- 
veyance from  the  vendor,  which  was  executed  after  the  lien  of  the  judg- 
ment attached,  although  in  pursuance  of  a  previous  contract,  was  at  law 
overreached  by  the  subsequent  sale  under  the  judgment.'     He  consid- 
ered a  judgment  a  legal   as  well  as  an  equitable   lien  upon  lands  con- 
tracted to  be   sold,  to  the  extent  of  the  unpaid  purchase  money  :  And 
that  the  commencement  of  a  suit  in  chancery,  which  is  duly  prosecuted 
to  a  decree,  is  constructive  notice  to  every  person  who  acquires  an  in- 
terest from  the  defendant  in   the  subject  matter  of  the  suit  pendente  lite, 
of  the  legal  and  equitable  rights  of  the  plaintiff  as  charged  in  the  bill 
and  established  by  the   decree.     Murray  v.  Ballou,   1   J.   Ch.  R.  556. 
Notwithstanding,   the  judgment  of  the  Supreme   Court  was  reversed  : 
All  the  Court  excepting  the  Chancellor,  voting  in  favor  of  the  reversal. 
The  rule  that  any  interest  acquired  in  the  subject  matter  of  a  suit  pend- 
ing the  suit,  is  so  far  considered  a  nullity  that  it  cannot  avail  against  the 
plaintiff's  title,  was  considered  inapplicable  to  the  case  at  bar  ;'  for  the 
reason  of  the  rule  was,  that  if  it  were  not  applied,   there  would   be  no 
end  to  any  suit,  the  justice  of  the  court  would  be  evaded,  and  great 
hardship  and  inconvenience  to   the  suitor  be  introduced.     Murray  r. 
Lilburn,  2  J.  Ch.  444.     2  Ball.  &  B.  167  :   Murray  v.  Ballou,  supra. 
In  the    latter  case  Chancellor  Kent  says  '  to  bring  home  to  every  pur- 
chaser, the   charge   of  actual  notice   of  the  suit  must,  from  the  very 
nature  of  the  case,  be  impracticable.'     But  '  this  reason  has  no  ap- 
plication to    a  third  person,  whose  interest  subsisted   before   the  suit 
was  commenced,  and  who  might  have  been  made  a  party.'      4  Cowen, 
678.     The  persons  in  possession  had  such  an  interest ;  for  possession 
itself  is  such  an  interest ;  and   entitles  the   party  to   a  day  in  court. 
Senator  Seward  in  delivering  his  opinion  showed   the  rule  and  the  rea- 
sons upon  which  it  was  founded  :   and  that  no  case  had  been  cited,  '  in 
which  the.rule  of  lis  pendens  had  been  applied  to  a  person  who  purchases 
by  contract,  and  enters  into  possession  and  in  part  performs  his  contract 
before  suit  commenced,  and  then  pendente  lite  without  actual  notice  fulfils 
his  contract  and  takes  a  deed  for  the  land.' 

(437)  See  Murray  v.  Ballou,  1  Johns.   Ch.    Rep.  676.     Jackeon  v. 
Dickenson,  16  Johns.  Rep.  315. 


326 


OF  NOTICE. 


to  money  secured  upon  it(f);  but  a  bill  to  perpetuate 
the  testimony  of  witnesses  and  to  establish  a  Avill,  is  a 
sufficient  lis  p end ens(g) (4^38). 

To  affect  a  purchaser,  it  has  been  said  that  there  ought 
to  be  a  close  and  continued  prosecution  of  the  lis  pen- 
(lens(Ji),  and  this  is  required  by  Lord  Bacon's  rule.  In  a 
late  case(z),  the  Master  of  the  Rolls  cited  the  following 
passage  from  Lord  Nottingham's  prolegomena  of  equity  : 
"The  Lord  Bacon,  in  his  12th  rule,  seems  to  direct,  that 
if  a  purchase  is  made  pendente  lite,  after  some  long  inter- 
mission, this  case  shall  differ  from  the  common  case. 
But  the  rule,  though  reasonable,  is  not  always  observed  ; 
for  in  Martin  v.  Stiles,  1663,  the  bill  filed  in  1640,  abated 
by  the  death  in  1648  :  a  bill  of  revivor  was  filed  in  1662  ; 
and  the  purchase  was  in  1651  ;  and  yet  the  purchaser  was 
bound,  because  now,  by  relation  of  the  bill  of  revivor,  it 
(*)wdis  pendetite  lite  :  y^er  Clarendon,  Chancellor."  This 
passage  was  cited  as  an  authority,  that  a  purchaser  during 
the  abatement  of  the  suit  is  bound  in  like  manner  as  if  the 
suit  was  in  full  prosecution.  But  the  learned  Judge  by 
whom  it  was  quoted,  treated  this  as  a  case  of  great  dif- 
ficulty, notwithstanding  the  authority  of  Lord  Notting- 
ham. Indeed,  the  case  referred  to  seems  to  depend  too 
much  on  its  own  circumstances  and  the  times  in  which  it 
occurred,  to  serve  as  a  precedent.  The  Lord  Keeper  ex- 
pressly said,  that  the  war  and  infancy  excused  the  laches. 
Besides,  it  appears  that  the  person  who  came  in  pendente 
lite  did  not  claim  by  purchase  for  money,  but  under  the 
will  of  the    person  against  whom  the  original  bill  was 

(/)   Worsley  v.  Earl  of  Scarborough,  3  Atk.  392. 
ig)   Garth  v.  Wafd,  2  Atk.  174. 
(h)   Preston  v.  Tubbin,  1  Vern.  286. 

(t)   Bishop  of  Winchester  V.  Paine,   11  Ves.  jun.  194;  see  Kinsman 
V.  Kinsman,  1  Taml.  399. 


(438)   See  .Alexander  v.  Pendleton,  8  Crunch,  469. 
(*282) 


OF  NOTICE.  cycyn 

filedC^').  If  the  point  should  over  call  for  a  decision,  it 
will  probahly  turn  on  the  question,  whether  the  plaintift' 
was  guilty  of  laches  in  reviving  the  suit. 

Lord  Redesdale  appears  to  have  held,  that  although 
a  bill  is  dismissed,  jet  a  party,  purchasing  after  the  dis- 
missal, was  a  purchaser  pendente  lite,  if  an  appeal  was 
afterwards  brought  in  the  House  of  Lords,  since  it  was 
still  a  question  whether  the  bill  was  r/o-A?/// dismissed,  and 
the  parties  thus  having  notice,  must  take  subject  to  all  the 
legal  and  equitable  consequences  ;  but  it  was  not  neces- 
sary to  decide  whether  such  a  purchase  was  by  force  of 
the  supposed  lis  pendens  made  with  implied  notice  of  the 
adverse  title(/). 

A  purchaser  pendente  lite,  on  filing  his  supplemental 
bill,  goes  into  the  Court  jjro  bono  et  'mcdo,  and  will  be 
liable  to  all  the  costs  in  the  proceedings,  from  the  begin- 
ning to  the  end  of  the  suit(wj)  ;  and  he  will  not  be  admit- 
ted to  examine  the  justice  of  a  former  decree,  but  will  be 
bound  by  the  prior  proceedings(n). 

(*)Relief  being  sought  against  a  bona  fide  purchaser  who 
bought  pendente  lite,  without  actual  notice,  is,  however, 
considered  a  hard  case  in  equity  ;  and  although  the  Court 
cannot  refuse  its  aid  against  him,  yet  the  plaintiff  is  by 
no  means  a  favorite  ;  and  therefore  if  he  make  a  slip  in 
his  proceedings,  the  Court  will  not  assist  him  to  rectify 
the  mistake(o). 

The  mere  pendency  of  a  suit  will  not  prevent  the  de- 
fendant from  selling  the  property,  the  subject  of  the  suit, 
but  the  purchase  will,  in  no  manner,  affect  the  right  of 
the  plaintiff,  except  so  far  as  it  may  be  necessary  to  go 
against  the  purchaser,  if  he  obtain  a  transfer  of  the  legal 

{k)   Style  V.  Martin,  1  Cha.  Ca.  150. 

{I)   1  Dow,  31. 

(w)   See   1  Atk.  89;   and  Gaskell  v.  Durdin,   2  Ball  &  Beatty,  167. 

(n)  Finch  V.  Newnham,  2  Vern.  216. 

ffi)  Sorreil  v.  Carpenter,  2  P.  Wms.  482. 

(*283) 


328  ^^   NOTICE. 

estate(;?)(439).  If,  however,  the  plaintiff  have  only 
a  defeasible  estate,  the  defendant  may  exercise  his  right 
to  put  an  end  to  it,  notwithstanding  the  pendency  of  the 
suit. — Therefore,  if  a  man  make  a  voluntary  settlement, 
and  the  person  claiming  under  it  file  a  bill  against  the  set- 
tlor, to  have  the  trusts  performed,  yet  the  defendant  may 
defeat  the  plaintiff's  right  by  selling  the  estate  to  a  pur- 
chaser during  the  pendency  of  the  suit.  The  same  ob- 
servation applies  to  a  settlement  with  a  power  of  re- 
vocation. The  settlor,  the  defendant,  may  revoke  the 
settlement,  although  a  suit  is  depending  for  carrying  it 
into  execution(9'). 

4.  Decrees  of  the  courts  of  equity  are  not  of  themselves 
notice  to  a  purchaser(r)(440). 

This  was  expressly  decided  in  Worsley  v.  the  Earl  of 
Scarborough(5)  ;  in  which  case  it  appears,  by  a  manuscript 
(*)note  of  the  late  Mr.  Coxe's  to  the  case  of  Preston  v. 
Tubbin,  in  his  copy  of  Vernon,  in  Lincoln's-Inn  Library, 
that  Lord  Hardwicke  held  most  decidedly,  that  decrees 
were  not  notice.  He  said  there  was  no  such  doctrine, 
that  men  were  to  take  notice  of  the  decrees  of  this  Court, 
though  they  were  to  take  notice  of  a  lis  pendens.  In 
Sorrel  v.  Carpenter(i),  it  was  said  by  Lord  Chancellor 
King,  that  the  Court  will  oblige  all  to  take  notice  of  its 

(p)  Metcalfe  v.  Pulvertoft,  before  the  Vice-Chancellor,  10th  August 
1813.     See  1  Ves.  &  Beam.  180  ;  2  Ves.  &  Beam.  200. 

{q)    S.    C. 

{r)  See  Toth.  45  ;  Prac.  Reg.  Cha.  125  ;  and  see  Sir  Thomas 
Harvey  v.  Montague,  1  Vern.  57.   122. 

(s)  3  Atk.  392  ;  and  see  Rivers  v.  Steele,  Lib.  Reg.  U.  128 ;  temp. 
Lord  Hardwicke,  referred  to  by  Mr.  Coxe.  Note,  owing  to  the  ge- 
nerality of  the  reference,  I  could  not  find  this  case  in  the  register's  book. 

(0  2  P.  Wms.  482. 

(439)  See  Murray  v.  Lilburn,  2  Johns.  Ch.  Rep.  441,  442,  444. 

(440)  But  see  Watlington  v.  Hotvley,  1  Des.  170.  Monell  v.  Law- 
rence, on  appeal,  12  Johns.  Rep.  521. 

(*284) 


OF  NOTICE.  CJ29 

decrees  as  much  as  of  judgments.  This  dictum  is  fre- 
quently quoted  as  an  authoritj  to  prove  that  the  decrees 
of  equity  are  notice  to  purchasers  ;  but  it  was  only  an 
obiter  dictum ;  and,  indeed,  as  judgments  are  not  of  them- 
selves notice  to  a  purchaser,  it  does  not  appear  to  affect 
the  question.  At  first  sight,  the  case  of  Wortley  v.  Birk- 
head(z/),  seems  to  militate  against  the  doctrine,  but  on 
examination,  it  will  be  found  not  to  disturb  it;  that  case 
having  only  settled,  that  after  a  decree,  and  directions  to 
settle  the  priority  of  the  demands,  a  puisne  incumbrancer 
cannot  take  the  first  incumbrance,  and  thereby  gain  a  pre- 
ference to  the  second  :  as  it  would  lay  a  foundation  for  the 
greatest  collusion  and  contrivance  between  the  parties  to 
exclude  each  other. 

Decrees,  however,  w  hich  do  not  put  an  end  to  the  suit, 
as  decrees  to  account,  are  of  themselves  notice  to  a  pur- 
chaser(i?)  ;  because  the  lites  pendentes  are  not  thereby 
terminated(441). 

In  Kinsman  v.  Kinsrnan(a;),  a  testator,  who  died  in 
1780,  devised  one  estate  to  William  for  life,  remainder  to 
his  son,  an  infant,  in  tail,  and  another  estate  to  Simon  for 
life,  remainder  to  his  sons  in  tail.  By  a  decree  in  1792, 
in  a  creditor's  suit,  it  was  directed,  that  if  the  personal 
estate  were  insufficient  for  the  payment  of  the  debts, 
(*)the  tivo  estates  should  contribute  thereto  in  proportion 
to  their  respective  value  ;  and  in  1798,  upon  further  direc- 
tions, the  two  estates  were  ordered  to  be  sold.  William's 
estate  was  sold,  but  Simon  concealed  the  title-deeds  of 
the  estate  devised  to  him,  and  consequently  it  could  not 
be  sold  for  want  of  a  title.  In  1798,  upon  a  second  set 
of  further  directions,  the  debts  were  paid  out  of  the  pur- 

(tt)  2  Ves.  571. 

(r)   Worsley  v.  Earl  of  Scarborough,  3  Atk.  392. 

(x)    1  Russ.  &  Myl.  617. 


(441)   See  Mondl  v.  Lawrence,  on  appeal,  12  Johns.  Rep.  521. 
VOL.  II.  42  (*286) 


q^Q  OF  NOTICE. 

chase-money  for  William's  estate,  and  the  Master  re- 
ported what  proportion  of  the  debts  and  costs  ought  to 
be  borne  by  Simon's  estate.  William,  who  was  a  day- 
laborer,  took  no  further  step,  and  died  in  1825.  Simon 
being  left  in  possession  of  the  estate  devised  to  him,  he 
and  his  son  sold  it  in  1824  to  a  bona  fide  purchaser, 
without  notice.  William's  son,  shortly  after  his  father's 
death,  filed  a  supplemental  bill,  to  make  the  estate  sold 
by  Simon  bear  its  share  of  the  burden.  The  Master  of 
the  Rolls  made  a  decree  accordingly,  stating  that  at  the 
time  of  the  sale  there  was  plainly  a  lis  pendens,  which 
amounted  to  an  equitable  charge.  Upon  an  appeal  from 
this  decree  by  the  purchaser  from  Simon,  it  was  reversed 
by  the  present  Lord  Chancellor,  who  held  that  there  was 
not  such  a  litis  pendentia  at  the  time  when  the  purchase 
was  made  as  the  purchaser  was  bound  to  take  notice  of. 

5.  The  docketing  of  judgments  is  not  of  itself  notice 
to  a  purchaser(2/)  ;  for,  as  Lord  Talbot  observed,  judg- 
ments are  infinite(z). 

6.  Registration  of  deeds  is  not  of  itself  notice  to  a  pur- 
chaser who  was  seised  of  a  legal  estate  at  the  time  of  the 
purchase. 

If  a  man  search  the  register  he  will  be  deemed  to  have 
notice(f«)  ;  but  if  a  search  is  made  for  a  particular  period, 
(*)the  purchaser  will  not  by  the  search  be  deemed  to  have 
notice  of  any  instrument  not  registered  within  that  period. 
This  was  decided  in  Hodsgon  v.  Dean (6),  where  a  mort- 
gagee directed  a  search  to  be  made  by  the  deputy- reo^ister 
for  York  from  1794,  and  .the  plaintiff's  claim  to  an   equi- 

(y)  Snelling  v.  Squint,  2  Cha.  Ca.  47  ;  Gresvvold  v.  Marshain,  2 
Cha.  Ca.  170.  See  Arnbl.  154  ;  Churchill  v.  Grove,  1  Cha.  Ca.  37  ; 
2  Freem.  176. 

(s)  2  Eq.  Ca.  Abr.  682,  (D.)  n.  (b). 

(a)  Bushell  v.  Bushell,  1  Sch.  &  Lef.  103. 

(6)   2  Sim.  &  Stu.  221,  affirmed  by  the  Lord  Chancellor,  July  1825 
MS. 

(*286) 


OP  NOTICE.  001 

table  estate  arose  under  a  settlement  of  1755,  registered 
in  that  year  ;  and  it  was  held  that  the  limited  search  ex- 
cluded the  presumption  of  a  general  search,  and  that  the 
mortgagee  was  not  bound  by  constructive  notice  of  the 
registered  deed. 

,  7.  Neither  an  act  of  bankruptcy(c),  nor  a  commission 
of  bankruptcy(f/),  is  notice  to  a  purchaser. 

Indeed,  a  decision,  that  an  act  of  bankruptcy  was  of 
itself  notice  to  a  purchaser,  would  have  operated  as  a 
repeal  of  the  provision  in  the  statute  of  James,  in  favor 
of  jjurchasers  from  bankrupts.  For,  as  we  have  already 
seen,  a  purchaser,  with  notice  of  the  act  of  bankruptcy, 
cannot  take  advantage  of  the  statute(e)(I). 

Upon  the  general  rule  in  equity  in  favor  of  purchasers, 
and  upon  the  ground  that  an  act  of  bankruptcy  is  not  of 
itself  notice  to  a  purchaser,  Lord  Talbot,  in  the  case  of 
Collet  V,  De  Go\s(f)^  decided,  that  if  a  mortgage  of  a 
legal  estate  be  made  before  an  act  of  bankruptcy,  and  the 
mortgagee  make  further  advances  cifter  the  act  of  bank- 
ruptcy, (*)but  without  notice,  the  assignees  cannot  com- 
pel a  redemption  without  payment  of  all  the  money  ad- 
vanced, that  is,  that  the  mortgagee  not  having  had  notice, 
may  make  use  of  his  prior  legal  estate  as  a  protection 
against  the  commission  of  bankruptcy.  Upon  the  same 
principle  Lord  Mansiield   laid  it  down,  that  if  an  estate 

(c)  Wilker  i-.  Bodington,  2  Vern.  599  ;  Anon.  2  Cha.  Ca.  136  ;  Col- 
let r.  De  Gols,  For.  65;  and  see  4  Burr.  2425;  ex  jjcirte  Knott,  11 
Ves.  jun.  609  ;  but  see  p.  581. 

(d)  Plitlicox  r.  Sedgwick,  2  Vern.  156  ;  reversed  in  Dnm  Proc.  See 
Journals  of  the  House  of  Lords,  vol.  xiv.  p.  601  ;  and  sec  7  East,  161. 
See  also  Sowerby  v.  Brooks,  4  Barn.  &  Aid.  523,  where  the  Court  was 
not  aware  of  the  reversal  in  D.  P.  of  Hithcox  v.  Sedgwick. 

(e)  Vide  stipra,  vol.  2,  p.  184  ;  and  see  now  6  Geo.  4,  c.  16,  s.  81. 
83.  85,  86  ;  supra,  vol.  2.  p.  186. 

(/)  For.  65. 


(I)    Vide  supra,  s.  3,  which  states  the  acts  of  Parliament. 

(*287) 


QQ2  OF  NOTICE. 

be  purchased  without  notice  of  an  act  of  bankruptcy,  the 
purchaser  may  protect  himself  by  a  satisfied  term  prior 
to  the  act  of  bankruptcy  still  standing  out(^). 

In  a  case,  however,  before  Lord  Redesdale,  in  which 
Collet  and  De  Gois  was  incidentally  mentioned,  he  is  said 
to  have  observed,  that  it  is  now  the  constant  practice  for 
the  assignees  to  compel  a  redemption  on  payment  only  of 
what  was  advanced  before  the  bankruptcy.  He  did  not, 
however,  express  any  opijiion  on  the  point(A).  In  a  late 
case  before  Lord  Eldon(/),  in  whicii  this  question  was 
discussed,  but  did  not  call  for  a  decision,  his  Lordship,  in 
the  course  of  the  argument,  said,  "  the  case  of  Collet  v. 
De  Gols  proves  that  money  advanced  after  an  act  of 
bankruptcy  may  be  tacked  and  charged  upon  the  estate, 
notwithstanding  the  property  is  taken  out  of  the  bankrupt ; 
and  it  was  urged  there,  that  he  had  nothing  to  convey 
by  the  second  mortgage,  yet  it  was  held,  that  though  the 
legal  effect  of  the  second  mortgage  is  nothing,  the  Court 
will  consider  it  a  second  incumbrance.  The  distinction 
was  taken,  that  a  secret  act  of  bankruptcy  does  not  prevent 
tacking,  as  a  commission  issued  actually  does,  that  being 
notice  to  all  the  world."  In  delivering  judgment,  he 
observed,  "  that  it  was  said,  the  act  divests  the  bank- 
rupt of  all  his  interest,  and  when  the  commission  follows, 
it  operates  by  relation  from  the  time  the  act  of  bankruptcy 
was  committed  :  unquestionably  it  does ;  and  then  the 
person  taking  the  second  security  really  takes  nothinp-  • 
(*)no  interest  passing  from  the  bankrupt,  and  therefore 
shall  not  tack.  All  the  cases  show  that  this  objection  will 
not  do,  for  then  it  would  have  been  in  vain  to  discuss 
whether  there  is  a  difference  between  securities  after  an 
act  of  bankruptcy,  and  after  a  commission  issued.  It  fol- 
lows of  necessity  that  the   law  {qu.  effecf]  is  the  same  in 

ig)  4  Burr.  2426.  (/i)   i  Scho.  &  Lef.  152. 

(i)   Ex  parte  KnoU,  11  Yes.  jun.  609. 

(*288) 


OF  NOTICE. 


333 


both  cases,  for  the  operation  of  the  commission  is  in 
either  case  precisely  the  same,  reducing  to  dust  and  ashes 
the  second  security." 

From  these  observations  Lord  Eldon's  opinion  appears 
to  be,  that  Collet  v.  De  Gols  is  still  a  binding  authority. 
If  it  should  be  thought  difficult  to  reconcile  the  last  sen- 
tence with  what  precedes  it,  that  must  give  way  to  what 
is  before  so  clearly  expressed.  Perhaps,  however.  Lord 
Eldon  intended  merely  to  say,  that  though  the  law  is 
different  in  these  cases,  yet  the  effect  of  the  commission 
is  the  same  whether  it  issued  previously  to  the  second 
mortgage,  or  subsequently  to  it,  but  upon  a  prior  act  of 
bankruptcy. 

A  case  came  before  Lord  Erskine,  in  which  the  precise 
point  called  for  a  decision.  His  Lordship  considered 
Lord  Eldon  and  Lord  Redesdale  as  having  both  expressed 
their  opinion  against  Collet  v.  De  Gols,  and  he  accord- 
ingly overruled  it,  and  decided  that  a  mortgagee  could 
not  tack  advances  subsequent  to  an  act  of  bankruptcy, 
although  made  without  notice,  and  the  mortgagee  had 
a  prior  legal  estate(A;). 

This  decision  must,  it  should  seem,  prevent  a  purchaser 
who  buys  without  notice  of  an  act  of  bankruptcy,  from 
availing  himself  of  a  prior  legal  estate  as  a  protection 
against  the  commission  ;  and  yet  it  has  always  been  con- 
sidered clear,  that  a  purchaser  could  not  in  such  a  case 
be  disturbed.  The  cases,  however,  cannot  be  distin- 
guished. The  mortgagee  was  a  purchaser /;ro  tanto,  and 
(*)he,  like  a  purchaser  out  and  out,  relied  on  his  legal  es- 
tate prior  to  the  act  of  bankruptcy  as  a  protection  against 
the  subsequent  commission.  But  we  have  seen  that  it 
was  taken  from  him. 

The  decision  is  open  to  much  observation.  It  entirely 
subverts  the  established   rule   of  equity,  that  a  purchaser 

(A;)  Ex  parte  Herbert,  13  Yes.  jun.  183. 

(*289) 


334 


OF  NOTICE. 


without  notice  shall  not  be  relieved  against,  and  an  act 
of  bankruj)tcy  is  not  of  itself  notice.  It  proceeded,  too, 
partly  on  an  opinion  attributed  to  Lord  Eldon,  but  which, 
it  should  seem,  he  never  entertained  ;  and  it  escaped 
observation,  that,  as  we  shall  shortly  see,  it  had  been 
decided  in  the  House  of  Lords,  that  a  mortgage  without 
notice  may  tack  advances  subsequently  even  to  a  commis- 
sion of  bankruptcy.  That  case  must  of  necessity  overf  ule 
all  others,  and  the  case  of  Collet  V.  De  Gols  may,  there- 
fore, be  still  thought  to  be  a  binding  authority. 

But  where  a  purchaser  claimed  the  benefit  of  Sir  Samuel 
Romilly's  act(/),  a  commission  issued,  although  after- 
wards superseded,  or  a  docket  struck,  would,  by  force  of 
the  statute,  have  been  constructive  notice  to  him  of  any 
prior  act  of  bankruptcy.  And  now  by  the  6  Geo.  4,  c.  16, 
s.  83(m),  the  issuing  of  a  commission  shall  be  deemed 
notice  of  a  prior  act  of  bankruptcy  (provided  an  act  of 
bankruptcy  has  been  actually  committed  before  the  issuing 
of  the  commission),  if  the  adjudication  shall  have  been 
notified  in  the  Gazette,  and  the  person  to  be  affected  by 
such  notice  may  reasonablj*  be  presumed  to  have  seen 
the  same. 

With  respect  to  a  commission  of  bankruptcy,  it  was, 
in  Hithcox  v.  Sedgwick,  held  by  Lords  Commissioners 
Trevor  and  Hutchins,  against  Lord  Commissioner  Raw- 
linson,  (*)that  a  commission  of  bankruptcy  was  notice  to 
a  purchaser  ;  and  that  case  is  considered  by  the  Pro- 
fession as  having  settled  that  a  commission  of  bankruptcy 
is  of  itself  notice(w). 

But  it  appears,  that  upon  appeal  to  the  House  of  Lords 

(/)    Vide  supra,  vol.  2.  p.  186. 

(ju)   And  see  s.  85,  86  ;  and  supra,  vol.  2.  p.  190. 

(n)  See  For.  70 ;  9  Ves.  jun.  28  ;  1  Pow.  Mortg.  663,  4th  edit.  ; 
Cooke's  B.  L.  628,  2d  edit.  ;  Cullen's  B.  L.  235  :  2  Cruise's  Dig. 
260;  ex  parte  Knott,  11  Ves.  jun.  609. 

(*290) 


1 


OF  NOTICE. 


335 


the  decree  against  Sedgwick  was  reversed,  and  the  estate 
ordered  to  be  sold,  and  Sedgwick  to  be  paid  the  2,200/. 
(the  money  advanced  after  the  commission  issued),  with 
interest,  costs  and  charges,  as  mortgagees  are  usually 
allowed  ;  which  was  of  course  deciding  that  a  commis- 
sion of  bankruptcy  is  not  of  itself  notice  to  a  purchaser, 
and  that  advances  made  without  notice  subsequently  to 
the  commission  may  be  tacked  to  the  prior  mortgage.  In 
the  late  Mr.  Coxe's  copy  of  Vernon,  in  Lincoln's-Inn 
Library,  is  a  note  to  the  case  of  Hithcox  v.  Sedgwick 
(which  must  have  been  written  before  the  publication  of 
the  Lords  Journals),  in  which  he  states,  that  Mr.  I.  Ord 
had  told  him  the  decree  was  reversed  on  appeal  to  the 
House  of  Lords  as  against  Sedgwick,  and  that  he  (Ord) 
found  it  so  said  in  a  note  of  this  case,  taken  by  Lord 
Trevor,  in  which  he  says,  the  decree  was  so  reversed  ;  and 
that  he  was  counsel  on  the  appeal  for  Sedgwick. 

8.  What  is  sufficient  to  put  a  purchaser  upon  an  in- 
quiry is  good  notice(o)  ;  that  is,  where  a  man  has  suffi- 
cient information  to  lead  him  to  a  fact  he  shall  be  deem- 
ed conusant  of  it(441«).     Therefore,  if  a  man  knows  that 

(o)  Smith  V.  Low,  1  Atk  4S9  ;  Taylor  t'.  Baker,  1  Dan.  71. 

(44lo)  See  Green  v.  Slaijler,  4  Johns.  Ch.  Rep.  38.  Stei'ry  v.  Arden^ 
1  Johns.  Ch.  Rep.  267.  Willis  v.  Bucher,  2  Binn.  466  ;  And  see 
Dey  V.  Dunham,  2  Johns.  Ch.  Rep.  182.  S.  C.  on  appeal,  15  Johns. 
Rep.  565. 

In  Farnsworth  v.  Childs,  4  Mass.  637,  where  a  second  purchaser 
had  read  a  prior  deed  of  conveyance  for  the  purpose  of  giving  his  opin- 
ion as  to  the  form  of  it,  the  court  considered  that  they  were  bound  to 
consider  him  as  having  knowledge  of  all  the  contents  of  the  deed,  not 
being  at  liberty,  as  a  jury  was,  to  make  a  different  inference.  But 
where  the  deed  had  lain  by  unrecorded  for  two  years,  without  any  ap- 
parent change  of  possession  or  occupation,  the  defendant  had  no  reason 
to  presume  that  the  plaintiff's  estate  remained  in  him.  The  cre- 
ditor's debt  was  bona  fide,  and  the  lands  of  the  grantor  were  liable  to 
satisfy  it.  The  grantee  does  not  put  his  deed  on  record,  and  for  per- 
sonal reasons,  he  permits  the  visible  possession  and  occupation  to  re- 
main in  the  grantor  :     And  no  reason  is  assigned  why  the  deed  is  not 


ggg  OF  NOTICE. 

the  legal  estate  is   in  a  third  person  at   the   time   he    pur- 
chases, he  is  bound  to  take   notice  what  the  trust  is(p). 

(p)  Anon.  2  Freem.  137,  pi.  711. 


[ 


recorded.  If  the  grantee  had  entered  into  possession,  the  notice  of  the 
prior  conveyance  would  have  been  a  continuing  notice.  But  when  the 
wrantor  remains  in  possession  for  a  long  time,  during  which  the  grantee 
might  have  recorded  his  deed,  hut  does  not  do  it ;  it  would  be  unrea- 
sonable to  defeat  the  subsequent  title  of  a  judgment  creditor  by  imput- 
ing to  him  a  fraud ;  because  he  might  well  presume,  from  the  length  of 
time  that  the  deed  had  remained  unrecorded,  either  that  it  was  not  bona 
fide,  or  that  it  had  been  cancelled,  or  that  the  estate  had  been  recon- 
veyed  ;  and  if  the  first  purchaser  suffers,  it  is  owing  entirely  to  his  own 
neglect.  If  the  grantee  had  taken  visible  possession  of  the  estate  be- 
fore the  levy  or  the  second  purchase^  the  case  would  rest  on  different 
principles,  and  would  receive  a  different  decision. 

Generally  the  open  and  notorious  possession  of  the  first  purchaser 
under  his  deed  would  be  sufficient  to  raise  a  legal  presumption  of  no- 
tice. But  where  the  grantee  of  a  part  of  a  lot  of  land  ;  he  being  before 
owner  of  the  residue,  only  repaired  the  fences,  put  some  cattle  into  the 
lot  and  also  cut  and  sold  some  trees  from  the  part  he  had  purchased  ; 
held,  that  these  facts  were  not  sufficient  to  imply  notice.  The  repairing 
the  fence,  setting  aside  the  deed,  would  have  been  neither  a  disseisin 
nor  a  trespass.  Nor  was  the  depasturing  the  small  strip  of  improved 
land ;  for  the  tenant  had  a  right  to  turn  his  cattle  into  his  own  pasture  : 
And  as  to  the  cutting  the  trees,  it  was  but  a  mere  trespass.  The  deed 
was  not  followed  by  any  apparent  change  in  the  possession.  The  pos- 
session therefore  was  hardly  sufficient  to  put  a  party  on  inquiry,  and  is 
very  slight  ground  for  implied  notice  of  a  prior  deed.  M'Mechan  v. 
Griffing,  3  Pick.  149. 

A  deed  was  executed  and  delivered  ;  but  befbre  it  was  recorded,  the 
tenant  attached  the  land  :  the  deed  having  been  executed  on  the  8th  and 
recorded  early  in  the  next  morning :  held,  that  the  attachment  had  pri- 
ority. Parker,  C.  J.  "It  is  agreed  that  the  attachment  was  made  be- 
fore the  deed  was  recorded,  but  not  until  it  was  executed  and  delivered. 
The  case  then  turns  upon  the  knowledge  of  the  tenant  of  a  title  in  the 
demandant,  when  he  caused  his  attachment  to  be  made.  If  when  he 
set  out  to  make  this  attachment,  the  title  to  the  land  had  passed  from 
Cushing  to  the  demandant  by  an  actual  delivery  of  the  deed,  then  to  in- 
tercept him  by  an  attachment  before  he  could,  with  all  due  diligence, 
procure  a  registry  of  his  deed,  might  according  to  the  case  of  Priest  v. 


OF  NOTICE.  «g_ 

So  notice  that  tlie  title-deeds  are  in  another  man's  pos- 
session may  be  held  to  be  notice  of  any  equitable  claim 
(*)which  he  may  have  on  the  estate,  and  as  a  security  for 
which  he  held  the  deeds(9)(442). 

This  doctrine  has  been  carried  so  far,  that  notice  that 
j)art  of  the  estate  was  in  possession  of  a  tenant  hath  been 
holden  to  be  notice  of  a  lease,  althougli  the  purchaser 
took  it  for  granted  that  the  tenant  was  only  so  from  year 
to  year(r)(443).     And  if  the  tenant  has  even  changed  his 

iq)    Hiein  I".  Mill,  13  Ves.  jun.  114. 

(r)   See  2  Ves.  jun.  440  ;    13  Ves.  jun.  121. 

Rice,  1  Pick.  168,  be  fraudulent,  and  his  attachment  would  fail.  But 
here  the  deed  was  only  about  being  made,  and  this  fact  the  tenant  knew. 
He  had  a  right  to  try  his  speed  in  this  case,  as  much  as  if  the  demand- 
ant had  been  about  obtaining  his  security  by  attachment,  and  while  his 
writ  was  preparing,  the  tenant  had  procured  the  first  attachment.  The 
principle  which  is  -to  govern  this  case,  was  settled  in  Warden  v.  Adams, 
15  Mass.  233.  It  is  not  the  knowledge  of  an  intent  to  convey  or  at- 
tach, which  will  prevent  the  legal  effect  of  an  attachment  by  another 
creditor,  which  gets  to  be  first  in  point  of  time,  but  a  knowledge  of  an 
actual  passing  the  title,  which  is  complete  against  every  one  with  notice, 
whether  by  registry  or  personal.  The  reasonable  time  to  get  a  deed 
recorded,  is  applicable  only  to  cases  of  constructive  fraud  which  may 
be  rebutted  by  such  laches  as  would  give  ground  to  believe  the  bargain 
had  been  rescinded,  there  being  no  regi.stry  of  the  deed,  and  no  change 
of  possession  in  the  land  conveyed.  There  is  nothing  in  the  position 
against  subsequently  attaching  creditors,  or  subsequent  purchasers,  with- 
out notice."     Gushing  v.  Hurd,  4  Pick  253. 

(442)  The  mere  circumstance  of  leaving  the  title  deeds  in  the  hands 
of  the  mortgagor,  is  not,  of  itself,  sufficient  evidence  of  fraud,  so  as  to 
postpone  the  first  mortgagee,  to  a  second  mortgagee,  who  has  taken  the 
title  deeds,  without  notice  of  the  first  mortgage.  Beri^y  v.  Mutual  Ins. 
Co.  2  Johns.  Ch.  Rep  603.  So,  where  a  demise  is  made  of  a  leasehold 
estate,  by  way  of  mortgage,  it  is  unnecessary  to  deliver  the  lease  itself 
to  the  mortgagee  ;  and  the  possession  of  it  by  the  mortgagor  is  no  evi- 
dence of  fraud  ;  because  the  registry  act  requiring  the  registry  of  mort- 
gages, effectually  secures  the  rights  of  subsequent  purchasers"  and  mort- 
gagees, against  fraud.  Johnson  v.  Siagg,  on  appeal,  2  Johns.  Rep. 
510. 

(443)  See  Chesierman  v.  Gardner,  5  Johns.  Ch.  Rep.  29. 

43  (*291) 


ggQ  OF  NOTICE. 

character  by  having  agreed  to  purchase  the  estate,  yet 
his  possession  amounts  to  notice  of  his  equitable  title  as 
purchaser(5)  ;  and  consequently  a  subsequent  purchaser, 
although  without  actual  notice,  will  be  considered  as  a 
purchaser  of  the  seller's  title,  subject  to  the  equity  of  the 
tenant,  the  iirst  purchaser,  to  have  the  estate  conveyed  to 
him  at  the  price  which  he  had  stipulated  to  pay  to  the 
seller.  In  such  a  case,  therefore,  a  specific  performance 
will  be  decreed  in  favor  of  the  tenant  against  the  seller, 
and  the  second  purchaser,  and  they  will  be  left  to  settle 
their  rights  between  themselves(^).  The  cases  have  gone 
so  far,  that  a  purchaser  cannot  be  advised  to  complete 
a  contract  for  an  estate  not  in  the  seller's  own  occupation 
without  a  communication  with  the  tenants,  in  order  to 
ascertain  what  their  interests  really  are.  So  where  a 
tenant  had  an  interest  under  an  agreement  posterior  to 
the  lease  under  which  he  held,  the  purchaser  was  held 
to  be  bound  by  it,  although  he  had  not  notice  of  it(w}. 
But  a  purchaser,  where  the  possession  is  vacant,  is  not 
bound  to  inquire  of  the  late  occupier  what  was  the  nature 
of  his  title,  and  therefore  would  not  be  held  to  have 
(*)implied  notice  of  the  information  which  he  might  have 
obtained  by  inquiry(v). 

Where  a  man  had  made  an  equitable  mortgage  to  J.y 
and  upon  afterwards  giving  a  security  to  another  person^ 
stated  that  he  had  given  a  judgment  or  warrant  of  attor- 
ney to  A,  for  money  borrowed  of  him,  this  was  held  to  be 
notice  of  the  mortgage  (a;). 

In  a  late   case,  where  a  charity-lease    was   sought   to 

(«)  Daniels  v.  Davison,  16  Ves.  249  ;  and  see  Crofton  v.  Ormsby,  2 
Scho.  &  Lef.  683  ;  Meux  v.  Maltby,  2  Swan^t.  181  ;  Powell  r.  Dillon, 
2  Ball  &  Beatt.  416. 

(t)   17  Ves.  jun.  433. 

(u)   Allen  V.  Anthony,  1  Mer.  282. 

(v)  Miles  V.  Langley,  1  Russ.  &  Myl.  39. 

(x)  Taylor  v.  Baker,  5  Price,  306. 

(*292) 


OP  NOTICE.  cyan 

be  set  aside  as  improvidentlj  made,  upon  the  common 
equity,  and  it  appeared  that  some  of  the  parties  stood 
in  the  character  of  purchasers,  Lord  Eldon  said,  though 
the  purchaser  of  a  lease  has  never  been  considered  as  a 
purchaser  for  valuable  consideration,  without  notice,  to 
the  extent  of  not  being  bound  to  know  from  whom  the 
lessor  derived  his  title,  he  (Lord  Eldon)  was  not  aware 
of  any  case  that  had  gone  the  length  that  the  purchaser 
was  to  take  notice  of  all  those  circumstances  under  which 
the  lessor  derived  that  title.  Therefore,  although  the 
parties  before  the  court  must  be  understood  at  least  to 
have  notice  that  the  lessors  were  trustees  for  a  charitj, 
yet  he  could  not  go  the  length  that  the  purchasers  had 
notice  that  the  lease  was  bad  ;  that  depending  on  a  Jium- 
ber  of  circumstances  dehors  the  lease(?/). 

But  this  of  course,  as  in  all  other  cases  of  notice,  only 
prevails  in  equity  ;  for  although  a  purchaser  has  actual 
notice  of  a  lease,  yet  if  it  be  invalid,  he  may  at  law 
recover  the  possession  from  the  lessee(z). 

Notice  of  a  tenancy  will  not,  it  seems,  affect  a  purchaser 
with  constructive  notice  of  the  lessor's  title.  Therefore,  if 
a  person  equitably  entitled  to  an  estate  let  it  to  a  tenant 
(*)who  takes  possession,  and  then  the  person  having  the 
legal  estate  sells  to  a  person  who  purchases  bonajide  and 
without  note  of  the  equitable  claim,  the  purchaser  must 
hold  against  the  equitable  owner,  although  he  had  notice 
of  the  tenant  being  in  possession. 

So  a  purchaser  bona  Jide  and  Avithout  notice  cannot 
be  affected  by  the  mere  circumstance  of  the  vendor 
having  been  out  of  possession  many  years.     Thus,  in  a 


(y)  Attorney-General  v.  Backhouse,  17  Ves.  jun.  293.     See  3  Ridg. 
P.  C.  512. 

(z)  Doe  V.  LufTkin,  4  East,  221. 

(*293) 


340  ''''  '''''''''''^■ 

case(«)(I),  where  A.  covenanted  to  surrender  lands  to 
uses,  which  were  enjoyed  accordingly,  although  no  sur- 
render was  made;  and  ^4.,  thirteen  years  afterwards,  sur- 
rendered the  same  lands  to  B.  for  valuable  consideration, 
without  notice  of  the  covenant,  B.  was  holden  to  be  en- 
titled to  the  lands,  and  the  covenantees  were  left  to  their 
remedy  at  law. 

In  all  cases  where  a  purchaser  cannot  make  out  a  title 
but  by  a  deed  which  leads  him  to  another  fact,  whether 
by  description  of  the  parties,  recital  or  otherwise,  he  will 
be  deemed  conusant  thereof;  for  h  was  crassa  negligentia 
that  he  sought  not  after  it(6)(444)  ;  and  for  the  same  rea- 
son, if  a  purchaser  has  notice  of  a  deed  he  is  bound  by  all 
its  c«utents(c)(445). 

(a)  Oxwith  V.  Plummer,  Bac.  Abr.  T.  Mortgage,  (E.)  s.  3 ;  2 
Vern,  636,  S.  C. 

[h)  Bisco  V.  Earl  of  Banbury,  1  Cha.  C.  287  ;  Moore  v.  Bennett,  2 
Cha.  Ca.  246  ;  Ferrars  v.  Cherry,  2  Vern.  384  ;  Drapers'  Company 
V.  Yardley,  2  Vern.  662  ;  Mertins  v.  Joliffe,  Ambl.  313  ;  Bury  r.  Bury, 
Chancery,  llth  July  1748,  MS.  Appendix,  No.  27;  and  Coppin  v. 
Fernyhough,  2  Bro.  C,  C.  291  ;  S.  P.  per  Lord  Keeper  Henley,  in 
Howarth  v.  Powell,  T.  Vac.  1758,  MS. ;  1  Eden,  51,  nom  Howorlh 
V.  Deem  ;   Malpas  v.  Ackland,  3  Russ    273. 

(c)  Tanner  v.  Florence,  1  Cha.  Ca.  259  ;  Taylor  v.  Slibbert,  2 
Ves.  jun.  437  ;  Hall  v.  Smith,  MS.  S.  C.  ;  14  Ves.  jun.  426  ;  Daniels 
V.  Davison,  16  V-es.  jun.  249  ;  which  have  overruled  Phillips  v.  Redhel, 

(I)  From  the  report  in  Vernon,  it  seems  that  Lord  Cowper  thought 
there  was  no  specific  agreement  to  surrender  the  copyhold  to  Oxwith ; 
but  the  report  in  Bacon  is  very  full  and  circumstantial. 


(444)  See  Willis  v.  Bucher,  2  Binn.  466.  A  conveyance,  with  a 
recital  of  the  intent  of  the  purchase,  is  a  conveyance  with  notice,  and  the 
grantee  will  take  the  estate  subject  to  the  trusts  implied,  as  well  as  ex- 
pressed. Cuyler  v.  Bradt,  2  Caines'  Cas.  in  Error,  326.  But  a  pur- 
chaser of  A.,  a  trustee,  is  not  chargeable  with  notice  of  a  trust,  by 
means  of  the  registry  of  a  deed  from  B.  to  C,  reciting,  that  A,  had  ex- 
ecuted a  declaration  of  the  trust.  Murray  v.  Ballou,  1  Johns.  Ch. 
Rep.  566. 

(445)  See  Irvine  v.  Campbell,  6  Binn.  119, 


OF  NOTICE. 


341 


(*)Ifa  man  agrees  to  purchase  under  limitations  in  a 
deed,  which  makes  it  necessary  upon  that  transaction  for 
him  to  look  into  that  deed,  and  that  deed  contains  recitals 
of  judgments  affecting  the  lands  he  has  so  agreed  to  pur- 
chase, he  is  bound  by  those  judgments,  for  he  had  a  right 
to  see  the  whole  deed  under  which  he  purchased,  and 
therefore  must  be  taken  to  have  seen  the  whole,  and  must 
consequently  be  presumed  to  have  taken  notice  of  every 
thing  contained  in  it  affecting  his  purchase(</)(446). 

So  if  an  estate  be  subject  to  incumbrances,  and  be  given 
by  the  owner  in  consideration  of  another  estate  given  to 
him,  the  latter  estate  is  subject  in  equity  to  the  incum- 
brances charged  at  law  on  the  former,  and  a  purchaser, 
with  notice  of  the  transaction,  is  liable  to  the  incum- 
brances although  he  had  not  notice  of  them.  This  was 
decided  by  Lord  Redesdale,  w  ho  considered  it  sufficient 
that  the  purchaser,  by  notice  of  the  deeds,  had  notice  of 
the  equity,  although  he  had  not  notice  of  the  particular 
incumbrance.  This  he  said  was  an  equity  of  which  every 
purchaser  under  a  settlement  must  have  notice  ;  for  it  is 
a  clear  rule,  that  a  man  cannot  claim  under  a  deed,  and 
avoid  the  deed  ;  he  must  submit  to  the  whole  ;  and  he  has 
notice  of  every  thing  of  which  the  vendor  had  notice,  so 
far  as  concerns  that  deed(e).  This,  it  may  be  observed, 
was  an  opinion  not  intended  to  decide  the  case,  although 
it  was  acquiesced  in.  It  carries  the  rule  much  farther,  it 
is  apprehended,  than  is  warranted  by  either  principle  or 
authority. 

2  Vern.  160,  cited ;  where  tenant  for  life  sold  as  tenant  in  fee,  and  the 
very  settlement  at  the  time  of  the  purchase  was  delivered  to  the  pur- 
chaser himself,  yet  the  Court  would  not  atfect  the  purchaser  with  the 
presumptive  notice,  but  dismissed  the  bill. 

(d)  Hamilton  v.  Royse,  2  Scho.  &  I^ef.  326,  per  Lord  Redesdale. 

(e)  Hamilton  v.  Royse,  2  Scho.  &  Lef.  315. 

(446)  See  Morris  v.  Vanderen,  1  Dall.  64.  67. 

(*294) 


342  "^  NOTICE. 

But  wliore  a  husband  has  not  performed  a  marriage 
agreement  on  his  part,  lie  is  not  entitled  to  claim  the  be- 
nefit of  \x(f)i  and  a  purchaser  from  him  of  the  considera- 
tion (*)for  the  settlement  by  the  wife,  with  notice  af  the 
deed,  will  be  bound  bj  the  same  equity  as  the  husband 
was(^). 

But  the  recital  in  a  deed  of  a  fact,  which  may  or  may 
not,  according  to  circumstances,  be  held  in  a  court  of 
equity  to  amount  to  a  fraud,  will  not,  it  seems,  affect  a 
purchaser  for  valuable  consideration  denying  actual  notice 
of  the  fraud(/i).  Nor  will  circumstances  amounting  to  a 
mere  suspicion  of  fraud  be  deemed  notice  thereof  to  a  pur- 
chaser. This  question  constantly  arises  in  practice,  on 
sales  by  tenant  for  life,  and  a  child  to  whom  he  has 
appointed  the  estate  under  an  exclusive  power  of  appaint- 
ment  amongst  his  children.  If  there  was  any  underhand 
agreement  between  the  father  and  son,  the  power  would 
be  deemed  fraudulently  executed,  and  the  other  children 
might  be  relieved  against  it.  The  difficulty  on  the  part 
of  a  purchaser  is  to  ascertain  what  circumstances,  inde- 
pendently of  a  direct  statement  of  the  fact,  are  sufficient 
to  fix  the  purchaser  with  presumptive  notice  of  fraud. 
Lord  Eldon  has  greatly  relieved  this  difficulty  by  de- 
ciding, that  the  mere  circumstance  of  the  father  first  con- 
tracting to  sell  the  estate,  and  then  appointing  to  one 
child,  who  joins  in  the  sale,  will  not  affect  the  purchaser 
where  the  contract  appears  to  have  been  fair,  and  the 
purchase-money  to  have  been  paid  to  all  the  parties,  and 
there  is  nothing  to  show  that  the  son  was  not  to  receive 
a  due  proportion  of  the  money(^). 

(/)  Mitford  V.  Mitford,  9  Ves.  jun.  87.  See  Bascoi  v.  Serra,  14 
Ves.  jun.  313. 

{g)  Harvey  v.  Ashley,  2  Scho.  &  Lef.  328,  cited. 

(h)   Kenny  r.  Browne,  3  Ridge.  P.  C.  512     .See  17  Ves.  jun.  293. 

(i)  M'Queeu  v.  Farquhar,  11  Ves.  jun.  467;  vide  supra,  vol.  1.  p. 
363. 

(*296) 


OF  NOTICE.  oua 

Although  a  term  assigned  generally  in  trust  to  attend 
the  inheritance  is  equally  char;^ed  with  the  inheritance 
itself,  yet  such  a  trust  is  not  of  itself  notice  to  a  purchaser 
of  any  incumbrances;  for  it  is  notice  of  nothing  but  that 
(*)there  is  an  inheritance  to  be  protected,  and  that  the 
term  is  attendant.  It  therefore  gives  notice  to  a  purchaser 
of  nothing  but  what  he  had  notice  of  by  the  deeds  making 
out  the  title  to  the  fee. 

But  if  in  an  assignment  it  be  declared  that  the  term  is 
assigned  to  attend  the  inheritance,  as  limited  or  settled  by 
such  a  deed,  or  to  protect  the  uses  of  such  a  settlement,  as 
is  sometimes  done,  that  will  be  notice  of  the  deed  or  set- 
tlement, and  consequently  of  all  the  uses  of  it,  and  the 
purchaser  is  bound  to  find  them  out  at  his  peril(/(:). 

It  has  been  said  that  the  court-rolls  are  the  title-deeds 
of  copyholds,  and  a  purchaser  is  affected  with  notice  of 
the  court-rolls,  as  far  back  as  a  search  is  necessary  for 
the  security  of  the  title(/).  But  this  does  not  accord 
with  the  general  rule  as  to  judgments,  registered  deeds, 
and  the  like,  and  would  lead  to  great  inconvenience  in 
practice.  It  frequentfy  happens  that  purchasers  of  pro- 
perty of  small  value  accept  the  title  of  a  great  family 
under  the  last  settlement,  and  it  would  be  impossible  to 
hold  that  they  were  bound  by  notice  of  the  contents  of 
th(^  early  deeds  if  not  referred  to  by  the  settlement.  A 
purchaser  of  a  copyhold  estate  is  furnished  with  aa 
abstract  of  the  surrenders  and  admissions,  and  requires 
copies  of  the  material  ones  ;  but,  in  point  of  fact,  the 
court-rolls  are  scarcely  ever  searched  by  a  purchaser,  and 
it  has  always  been  understood,  in  practice,  that  he  is  not 
bound  by  notice  of  their  contents. 

9.  The  better  opinion  seems  to  be,  that  being  a  witness 
to  the  execution  of  a  deed  will  not  of  itself  be  notioe  ;  for 

(k)  Willoiighby  v.  Willoughby,  1  T.  Rep.  763  ;    1  Col.  Jurid.  337. 
(/)  Pearce  v.  IVewlyn,  3  Madd.  186. 

(*296) 


344  ^^  NOTICE. 

a  witness,  in  practice,  is   not  privy  to  the  contents  of  the 
deed(w). 

(*)This  question  has  hitherto  only  occurred  between  a 
first  mortgagee,  who  witnessed  a  second  mortgage,  and 
the  second  mortgagee  ;  but  it  might  arise  between  a  pur- 
chaser who  had,  previously  to  his  purchase,  attested  the 
execution  of  a  deed  relating;  to  the  estate,  and  the  persoii 
in  whose  favor  the  deed  was  executed. 

Lastly,  it  remains  to  consider,  whether  a  purchaser  is 
bound  to  take  notice  of  the  mere  construction  of  words 
which  are  uncertain  in  themselves,  and  often  depend  on 
the  locality  of  them  for  the  interpretation  which  they  may 
receive. 

This  question  arises  where  a  settlement  is  made  in 
pursuance  of  articles  ;  but  the  estate  is,  contrary  to  the 
intention  of  the  parties,  limited  so  as  to  enable  the 
parent  to  dispose  of  it.  It  is  clear  that  .the  Court  will 
rectify  the  settlement  according  to  the  intention,  in  favor 
of  the  issue,  as  between  themselves,  or  as  between  them- 
selves and  persons  claiming  under  the  parent  without 
consideration ;  but  this  has  never  yet  been  done  against 
a  purchaser(7i). 

In  Senhouse  v.  Earle(o),  Lord  Hardwicke  drew  a  dis- 
tinction between  ancient  articles  of  this  sort  and  modern 
ones,  and  expressed  his  opinion,  that  in  the  case  of 
ancient  articles  the  purchaser  should  not  be  disturbed, 
because  modern  methods  of  conveyancing  were  not  to 
be  construed   to  affect  ancient  notions  of  equity ;  but  in 

(m)  Mocatta  v.  Murgatroyd,  1  P.  Wms.  393  ;  Editor's  and  Cox's 
notes,  ibid.  ;  Welford  v.  Beezley,  1  Ves.  6  ;  Beckett  v.  Cordley,  1 
Bro.  C.  C.  367.  See  1  Ves.  jun.  55  ;  and  see  Harding  v.  Crethorn,  1 
Esp.  Ca.  56  ;  Holnnes  v.  Custance,  12  A'^es.  jun.  279;  Biddulph  v.  St. 
John,  2  Scho.  &  Lef.  521  ;  Reed  v.  Williams,  5  Taunt.  257;  6  Dow, 
224. 

(n)  Warrick  v.  Warrick,  3  Atk.  291. 

(o)  Ambl.  285. 

(*297) 


OF  NOTICE.  3^^ 

case  of  notice  of  modern  'drticles,  he  thought  the  Court 
ought  to  carry  them  into  execution  against  a  purchaser. 
But  in  a  later  case(;9),  Lord  Northington  seemed  rather  of 
opinion  that  no  relief  should  be  granted  against  a  pur- 
chaser ;  (*jbut  this  case  is  not  satisfactory,  as  the  lan- 
guage attributed  to  the  Chancellor,  on  the  principal  ques- 
tion in  that  case,  is  by  no  means  consistent  u  ith  the  prior 
cases  on  the  subject. 

Under  these  circumstances,  a  purchaser  cannot  be 
advised  to  accept  a  title  depending  on  a  settlement  made 
in  pursuance  of  articles,  but  not  framed  according  to  the 
general  rules  of  equity(^)  ;  and,  certainly,  a  court  of 
equity  would  not  enforce  a  purchaser  to  take  such  a  title, 
although  no  relief  might  be  granted  to  his  prejudice  if  he 
actually  had  purchased. 


III.  Having  endeavored  to  show  what  will  be  deemed 
notice,  either  actual  or  constructive,  we  are  now  to  inquire 
what  will  be  sufficient  proof  of  such  notice. 

It  seems  that  the  counsel,  attorney  or  agent  of  the 
purchaser,  cannot  be  admitted  to  prove  notice(447). 

In  Maddox  v.  Maddox(r),  the  reading  of  the  deposition 

(p)  Cordwell  v.  Mackrill,  Ambl.  515  ;  and  see  Hardy  v.  Reeves,  4 
Ves.  jun.  466  ;  5  Ves.  jun.  426  ;  Parker  i'.  Brooke,  9  Ves.  jun.  683  ; 
and  Matthews  v.  Jones,  2  Anstr.  596. 

{q)   See  Fearne's  Posth.  315. 

(r)  1  Ves.  62 ;  and  see  Bishop  of  Winchester  r.  Foumier,  2  Ves. 
445. 


(447)  See  Blair  v.  Oivles,  1  Munf.  38.  contra.  Every  agent  is  a 
competent  witness,  ex  necessitate.  Mackay  v.  Rliinclander,  1  Johns. 
Cas.  408.  Jones  v.  Hake,  2  Johns,  Cas.  60.  Abbot  v.  Sebor,  3 
Johns.  Cas.  47.  Steivart  v.  Kip,  5  Johns.  Rep.  256.  Cortes  v.  Bil- 
lin<rs,  1  Johns.  Cas.  270.  Alston  v.  Jones,  1  Murph.  45.  Ried  v. 
Colcock,  1  Nott  &  M'Cord,  592.  Connelly  v.  C/ij7es,  2  Marsh.  Ken. 
Rep.  242.  Kirkpatrick  v.  Cisna,  3  Bibb,  244.  Alexander  v.  Emerson, 
2  Litt.  27.     Phillips  v.  Bridge,  1 1  Mass.  Rep.  242. 

44  (*298) 

VOL.    II.  ^*  ^  ' 


Q  tg  OF  NOTICE. 

of  the  agent  of  the  purchaser,  who  swore,  in  proof  of 
notice,  that  the  deeds  were  laid  before  counsel,  who  made 
objections  about  the  plaintiff's  title,  was  objected  to ;  but 
Lord  Hardwicke  said,  that  though  an  attorney  or  counsel 
concerned  for  one  of  the  parties  may,  if  he  pleases,  demur 
to  his  being  examined  as  a  witness,  yet  if  he  consents, 
the  Court  will  not  refuse  the  reading  his  deposition.  This 
objection,  he  added,  had  often  been  made ;  and  though 
some  particular  Judges  had  doubted,  it  was  then  always 
over-ruled.  And,  on  investigation,  it  will,  I  believe,  be 
found  that  Lord  Hardwicke  invariably  adhered  to  this 
opinion.  But  it  was  settled  before  Lord  Hardwicke's 
time(5),  and  has  been  the  observed  rule  of  the  Courts 
(*)eversince(i),  that  counsel  and  attornies  ought  not  to  be 
permitted  to  discover  the  secrets  of  their  clients,  though 
they  offer  themselves  for  that  purpose,  and  this  is  the 
privilege  of  the  client,  not  of  the  counsel  or  attorney(I)  ; 
for  it  is  contrary  to  the  policy  of  the  law  to  permit  any 
person  to  betray  a  secret  with  which  the  law  has  intrusted 
him  (448). 

But  a  communication  by  mistake  to  a  person  not  ac- 
tually an  attorney,  although  considered  so  by  the  person 
making  it,  is  not  protected(w)(449)  ;  and  an  attorney  may 

(s)  Lord  Say  and  Seal's  case,  10  Mod.  41.  See  Lee  v.  Markham, 
Toth.  110  ;  and  Anon.  Skin.  404. 

{t)  Lindsay  v.  Talbot,  Bull.  N.  P.  284  ;  Wilson  v.  Rastall,  4  Term 
Rep.  753  ;  and  see  2  Esp.  N.  P.  716 ;  Wright  v,  Mayer,  6  Ves.  jun. 
280  ;  Sloman  v.  Heme,  2  Esp.  Ca.  695  ;  Robson  v.  Kemp,  5  Esp.  Ca. 
52;  Brand  v.  Ackerman,  ib.  119;  Rex  v.  Withers,  2  Camp.  57S  ; 
Parkhurst  v.  Lowten,  2  Swanst.  194. 

(tt)  Fountain  v.  Young,  6  Esp.  Ca.  113. 

(I)  This  was  insisted  upon  in  the  reasons  in  Radcliffe  v.  Fursman, 
in  the  year  1730.     See  printed  cases,  Dom.  Proc. 

(448)  See  Mills  v.  Griswold,  1  Root,  383.  Riggs  v.  Denniston,  3 
Johns.  Cas.  198,  202  ;  et  seq.  And  see  Clay  v.  Williams,  2  Munf. 
105. 

(449)  See  Andrews  v.  Solomon,  1  Peters'  Rep.  369. 
(*299) 


OF  NOTICE.  oA^-y 

give  evidence  of  the  time  of  executing  a  deed,  for  a  thing 
of  such  a  nature  cannot  be  called  the  secret  of  his  client,  it 
is  a  thing  he  may  come  to  the  knowledge  of  without  his 
client's  acquainting  him,  and  is  of  that  nature  that  an 
attorney  concerned,  or  any  body  else,  may  inform  the 
Court  of(i;)(450). 

So,  if  an  attorney  put  his  name  to  an  instrument  as  a 
witness,  he  makes  himself  thereby  a  public  man,  and  no 
longer  clothed  with  the  character  of  an  attorney  ;  his  sig- 
nature binds  him  to  disclose  all  that  passed  at  the  time 
respecting  the  execution  of  the  instrument ;  but  not  what 
took  place  in  the  preparation  of  the  deed,  or  at  any  other 
lime,  and  not  connected  with  the  execution  of  it.  Every 
person  who  claims  an  interest  in  the  property,  has  a  right 
to  call  upon  the  attorney,  as  being  the  attesting  wit- 
iiess(a')  ;  nor  does  this  privilege  extend  to  communica- 
tions (*)from  collateral  quarters,  although  made  to  him  in 
consequence  of  his  character  of  attorney  ;  the  privilege 
is  restricted  to  communications,  whether  oral  or  written, 
from  the  client  to  his  attorney(?/),  but  it  is  not  necessary 
that  a  cause  should  have  commenced(z)(451). 

If  notice  be  only  proved  by  one  witness,  a  positive  and 
express  denial  by  the  answer  will  prevent  the  Court  from 
decreeing  against   the  answer(a)(452)  :   for   in  equity  the 

(v)   Lord  Say  an  J  Seal's  case,  10  Mod.  41. 

(x)  Kobson  V.  Kemp,  5  Esp.  Ca.  52 ;   Doe  v.  Andrews,  Cowp.  846. 

(u)   Spcnceley  v.  Schulenburgh,  7  East,  357. 

(»)  Clark  V.  Clark,  2  Mood.  &  Malk.  3. 

(a)  Alam  v.  Jourdon,  1  Verri.  161  ;  3  Cha.  Ca.  123  ;  Kingdorae  v. 
Boakes,  Prec.  Cha.  19;  Mortimer  r.  Orchard,  2  Ves.  jun.  243;  and 
see  Evans  v.  Bickneli,  6  Ves.  jun.  174  ;  3  Cha.  Ca.  123  ;  Dawson  v. 
Massey,  1  Ball  &  Beatty,  234 ;  Cooke  v.  Clayworth,  18  Ves.  12. 

(450)  See  Baker  v.  Arnold,  1  Caines'  Rep.  258.  ;  and  note  a. 

(451)  See  Hoffman  v.  Smith,  1  Caines'  Rep.  157. 

(452)  See  Smith  v.  Brush,  1  Johns.  Ch.  Rep.  459,  461,  462. 
BnghVs  heir  v.  Hufcgin,  Hardin,  536.    Heffner  v.  Miller,  2  Munf.  43. 

(*300) 


o^o  OF  NOTICE. 

general  rule  is,  that  if  the  answer  contains  a  positive  denial 
of  the  case  stated  in  the  bill,  and  it  is  contradicted  by 
one  witness  only,  there  cannot  be  a  decree  against  the 
defendant,  unless  the  circumstances  so  preponderate,  that 
greater  credit,  upon  the  testimonies  of  both  being  fairly 
balanced,  must  be  given  to  the  depositions  of  the  witness 
than  to  the  answer  of  the  defendant ;  laying  aside  all 
recollection  that  the  oath  of  one  of  the  parties  is  that  of 
an  interested  person (6). 

But  w^here  it  is  not  a  positive  denial  of  the  same  fact, 
but  admits  of  a  difference,  that  it  is  only  a  denial  with 
respect  to  himself,  whereas  in  other  respects  it  will 
equally  affect  him,  there  are  several  cases  where  the 
Court,  on  one  undoubted  witness,  would  decree  against 
the  answer  ;  for  instance,  a  person  denying  only  personal 
notice  is  a  negative  pregnant,  that  still  there  may  be  no- 
tice to  his  agent,  which  is  a  fact  equally  material(c)(453). 

And  where  the  answer  is  not  ad  idem,  the  charge  being 
positive,  and  the  answer  only  to  belief,  which  is  not  snffi- 

{b)  Per  Lord  Eldon,  East  India  Company  v.  Donald,  9  Ves.  jun. 
275  ;    1  Smith,  213. 

(c)   See  1  Ves.  66  ;  3  Atk.  650. 

Maupin  v.  Whiting,  1  Call,  224.  Pryorv.  Adams,  1  Call,  390.  Beatly 
V.  Smith,  2  Hen.  &  Munf.  395.  See  also  9  Cranch,  160.  Sullivan  v. 
Bates,  1  Litt.  42.  MBowel  v.  Teasdale,  I  Des.  459.  JYeufville  v. 
Mitchell,  1  Des.  480.  Clark's  Admrs.  v.  Van  Reimsdijk,  9  Cranch,  153, 
156.  Clason  \,  Morris,  on  appeal,  10  Johns.  Rep.  524.  Zijlstrav. 
Keith,  2  Des.  140.  But  an  answer,  though  in  form  responsive  to  a 
question  put  in  the  bill,  is  not  evidence,  where  it  asserts  a  right  affirma- 
tively, iu  opposition  to  the  plaintiff's  demand  ;  but  the  defendant  is  as 
much  bound  to  establish  such  assertion  by  independent  testimony,  as  the 
plaintiff  is  to  sustain  his  bill.  Paynes  v.  Coles,  1  Munf.  373.  See  Hart 
V.  Ten  Eyck,  2  Johns.  Ch-  Rep.  62.  See  also,  1  Johns.  Dig.  225.  pi. 
514.      And  see  note  a.  in  Hart  v.  Ten  Eycf.;  2  Johns.  Ch.  Rep.  91. 

(453)  An  evasive  answer,  though  no  exception  be  taken,  will  be  out- 
weighed by  the  testimony  of  one  witness,  connected  with  corroborative 
circumstances.      Wilkins  v.  Woodfin,  6  Munf.  183. 


OF  NOTICE.  o  vq 

cient  (*)to  contradict  what  is  positively  sworn,  a  single 
witness  will  be  sufficient(f/). 

So  where  there  are  a  great  many  concurring  circum- 
stances, that  strengthen  and  support  the  depositions  of  a 
single  witness,  his  evidence  alone  will  enable  the  Court 
to  decree  against  the  answer(e)(454). 

If  the  evidence  is  not  clear  enough  to  enable  the  Court 
to  make  a  satisfactory  decree,  it  will  be  sent  to  law  to  be 
tried(y),  unless  the  value  of  the  property  will  not  admit 
ofit(o-)(455). 

But  the  same  rule  that  would  absolutely  prevent  a  de- 
cree from  being  made  will  restrain  the  Court  from  direct- 
ing an  issue(/i)  ;  for  the  matter  is  only  referred  to  law,  to 
know  what  a  court  of  equity  ought  to  do(i)  ;  and  sending 
it  to  law  to  be  tried,  where  the  jury  will  certainly  find  it 
on  the  testimony  of  one  witness,  and  then  decreeing  it  on 
that  verdict,  is  the  same  thing  as  decreeing  on  one  wit- 
ness, without  trying  it  at  all(A:). 

Formerly,  an  issue  used  to  be  directed,  although  upon 
the  evidence  a  decree  could   not  be  made(/),  and  in  such 

(d)  See  1  Ves.  97  ;  and  see  Pilling  v.  Arraitage,  12  Yes.  jun.  78. 

(e)  Walton  v.  Hobbs,  2  Atk.  19  ;  Anon.  3  Atk.  270  ;  Only  v.  AValker, 
3  Atk.  407  ;  Pember  v.  Mathers,  1  Bro.  C.  C.  52  ;  East  1.  C.  v. 
Donald,  9  Ves.  jun.  275  ;  1  Smith,  213  ;  and  see  6  Ves.  jun.  40  ; 
Biddulph  r.  St.  John,  2  Scho.  &  Lef.  521. 

(f)  Arnot  V.  Biscoe,  1  Ves.  95. 

(g)  JoUand  v.  Stainbridge,  3  Ves.  jun.  478. 
{h)  Pember  v.  Mathers,  1  Bro.  C.  C.  52. 

(t)  See  1  Bro.  C.  C.  53,  54  ;  9  Ves.  jun.  284  ;   1  Smith's  Rep.  219. 

(A;)   See  1  Eq.  Ca.  Abr.  229,  pi.  13. 

(Z)  Stadd  V.  Cason,  Toth.  230  ;  Ibbotson  v.  Rhodes,  2  Vern.  554  ; 
1  Eq.  Ca.  Abr.  229,  pi.  13,  S.  C.  ;  Cant  v.  Lord  Beauclerk,  3  Atk. 
408,  cited  ;  sed  vide  Christ  College  v.  Widdingtou,  2  Vern.  283. 


(454)  See  Ilart  v.  Ten  Eyck,  2  Johns.  Ch.  Rep.  92. 

(455)  See  JVaters  v.  Travis,  9  Johns.  Rep.  450,  457. 

(*301) 


350  ^^  NOTICE. 

cases  the  defendant's  answer  was  to  be  read  at  the  trial, 
not  as  evidence,  for  that  could  not  be,  nor  was  it  to  be 
admitted  to  be  true,  but  to  be  sworn,  so  that  the  defend- 
ant might  have  the  benefit  of  his  oath  at  law  as  well  as 
(*)\n  equity,  if  it  would  have  any  weight  with  the  jury. 
But  this  could  only  be  done  where  it  was  merely  oath 
against  oath(m) ;  and  as  an  issue  would  not  now  be  di- 
rected in  such  a  case,  the  answer  of  the  defendant  cannot, 
it  should  seem,  at  the  present  day,  be  directed  to  be  read 
at  a  trial  at  law.  But  if  a  bill  is  filed  for  a  discovery  only, 
the  answer  of  the  defendant  may  of  course  be  read  on  the 
trial(n). 

It  must  be  remarked,  that  if  the  notice  arise  by  con- 
struction of  equity  on  a  deed  which  is  in  the  possession 
of  the  purchaser(o),  and  he  contend  that  it  did  not  come 
into  his  custody  till  after  the  completion  of  his  purchase, 
the  proof  thereof  will  lie  on  him(p). 

In  one  case(q),  however,  although  the  only  evidence 
of  the  deed  being  in  tin)  possession  of  the  defendant  was 
the  discovery  in  his  answer,  and  on  the  deed  being  pro- 
duced the  counsel  offered  to  read  the  answer,  to  show 
that  it  had  not  been  delivered  to  him  till  lately,  and  long 
after  he  had  purchased  the  estate.  Lord  Hardwicke  re- 
fused it,  although  it  was  argued  to  be  very  hard  ;  because 
the  only  account  of  the  delivery  of  the  deed  was  in  the 
answer  ;  and  by  its  not  being  permitted  to  be  read  the 
deed  must  be  taken  to  be  in  his  custody  at  the  time  of 
the  purchase,  ten  years  before  it  actually  was. 

But  it  seems,  that  the  defendant  had  sufficient  notice, 

(w)  Only  V.  Walker,  3  Atk.  407. 

(»)   See  9  Ves.  jun.  282  ;   1  Smith,  218. 

(oj   See  1  Ves.  392. 

ip)   See  2  Ves.  486. 

(q)  Mertins  r.  Joliffe,  Ambl.  311. 

(*302) 


OF  NOTICE. 


351 


besides  the  mere  custody  of  the  deed.  His  conveyance 
recited  all  the  former  deeds  ;  and  therefore  reading  the 
answer,  to  prove  when  the  deed  in  question  came  into 
his  custody,  was  perfectly  unnecessary.  This  case, 
therefore,  cannot  be  deemed  subversive  of  the  general 
rule. 


[  352  ] 


nCHAPTER  XVIII. 


OF    PLEADING    A    PURCHASE. 


"  Supposing  a  plaintiff  to  have  a  full  title  to  the  relief 
he  prays,  and  the  defendant  can  set  up  no  defence  in  bar 
of  that  title,  yet  if  the  defendant  has  an  equal  claim  to 
the  protection  of  a  court  of  equity  to  defend  his  posses- 
sion, as  the  plaintiff  has  to  the  assistance  of  the  Court  to 
assert  his  right,  -the  Court  will  not  interfere  on  either 
side.  This  is  the  case  where  the  defendant  claims  under 
a  purchase  for  valuable  consideration,  without  notice  of 
the  plaintiff's  title,  which  he  may  plead  in  bar  of  the 
suit"(«). 

The  principle  of  this  plea,  Lord  Eldon  observes,  is 
this :  "  I  have  honestly  and  bona  fide  paid  for  this  estate, 
in  order  to  make  myself  the  owner  of  it ;  and  you  shall 
have  no  information  from  me  as  to  the  perfection  or  im- 
perfection of  my  title  until  you  deliver  me  from  the  peril 
in  which  you  state  I  have  placed  myself  in  the  article  of 
purchasing  bona  fide^^(b). 

This  plea  is  a  peremptory  plea,  and  must  be  sworn  by 
the  pleader(c)(456).  It  must  be  put  in  ante  litem  con- 
testatam,  because  it  is  a  plea  why  an  answer  should  not 
be  put  in  ;  and,  therefore,  if  a  defendant  answers  to  any 

(a)  Mitford  on  Pleading,  2d  edit.  p.  215  ;  Gough  r.  Stedman,  Finch, 
208. 

(6)   See  Wallwyn  v.  Lee,  9  Ves.  jun.  24. 
(c)  Marshall  v.  Frank,  Free.  Cha.  480. 

(456)   See  Snelgrove  v.  Snelgrove,  4  Des.  286. 
(*303) 


I 


OF  PLEADING  A  PURCHASE.  ©r,* 

thing  to  whicli  he  may  plead,  he  over-rules  his  plea(rf)(457) 
but  he  (*)may  answer  any  thing  in  subsidhun  of  his  plea, 
as  he  may  deny  notice  in  his  answer,  which  he  may  deny 
also  in  his  plea  ;  because  that  is  not  putting  any  thing  to 
issue  which  he  should  cover  by  his  plea  from  being  put  in 
issue,  but  it  is  adding,  by  way  of  answer,  that  which  will 
support  his  plea,  and  not  an  answer  to  a  charge  in  the  bill, 
which  by  the  plea  he  would  decline(e). 

But  the  purchaser  must  protect  himself  by  plea,  for  if 
he  answer,  he  is  bound  to  answer  fully. 

The  plea  must  state  the  deeds  of  purchase,  setting 
forth  the  dates,  parties  and  contents  briefly,  a?id  the  time 
of  their  €xecution(\),  for  that  is  the  peremptory  matter  in 
barr/;(II)(458). 

It  must  aver  that  the  vendor  was  seised,  or  pretended  to 
be  seised  at  the  time  he  executed  the  conveyance(^)(459). 

{d)  Richardson  v.  Mitchell,  Sel.  Cha.  Ca.  51  ;  Blacket  v.  Langlands, 
1  Anstr.  14. 

(e)   Gilb.  For.  Ronx.  58.     See   Hoare  v.  Parker,   1  Bro.  C.  C.  573. 

(/)  See  Gilb.  For.  Rom.  58  ;  Aston  v.  Aston,  3  Atk.  302;  and  2 
Ves.  107.  396  ;  and  see  Wallwyn  v.  Lee,  9  Ves.  jun.  24. 

{g)  Story  V.  Lord  Windsor,  2  Atk.  630  ;  Head  v.  Egerton,  3  P. 
Wms.  279;  and  see  17  Ves.  jun.  290;  Jackson  r.  Rowe,  4  Russ. 
614. 


(I)  Qu.  this,  as  the  plaintiff  might  thereby  be  enabled  to  proceed 
against  the  defendant  at  law.  See  Anon,  2  Cha.  Ca.  161.  In  Day  r. 
Arundel,  Hard.  510,  it  was  expressly  held  that  the  time  of  the  purchase 
need  not  be  stated  in  the  plea. 

(II)  It  seems,  that  the  practice  formerly  was,  to  extend  the  plea 
to  the  discovery  even  of  the  purchase-deeds  ;  and  in  Watkins  v. 
Hatchet,  1  Eq.  Ca.  Abr.  33,  pi.  3,  although  the  purchaser  improvi- 
dently  offered  to  produce  his  purchase-deeds,  yet  the  Court  would  not 
bind  him  to  do  so. 


(457)  See  Snelgrove  v.  Snelgrove,  ut  supra. 

(468)  See  Snelgrove  v.  Snelgrove,  4  Des.  286, 

(469)  See  4  Des.  287. 

vol..  II.  45  (*304) 


3^^  OF  PLEADING  A  PURCHASE. 

In  Carter  v.  Pritchard(/i)  it  was  held,  that  the  plea  of 
a  purchase  without  notice  must  aver  the  defendant's  belief 
that  the  person  from  whom  he  purchased  was  seised  in 
fee.  If  it  be  charged  in  the  bill  that  the  vendor  was  only 
tenant  for  life,  or  tenant  in  tail,  and  a  discovery  of  the 
(*}title  be  prayed,  such  a  discovery  cannot  be  covered, 
unless  a  seisin  is  sworn  in  the  manner  already  mentioned, 
or  that  such  fines  and  recoveries  were  levied  and  suffered 
as  would  bar  an  entail  if  the  vendor  was  tenant  in  tail  ; 
for  if  a  purchase  by  lease  and  release  should  be  set  forth, 
which  would  pass  no  more  from  the  tenant  in  tail  than  it 
lawfully  may  pass,  and  that  is  only  an  estate  for  the  life 
of  the  tenant  in  tail(I),  then  there  is  no  bar  against  the 
issue(i).  Where,  however,  a  fine  is  pleaded,  the  plea 
must  aver  an  actual  seisin  of  a  freehold  in  the  vendor,  and 
not  that  he  was  seised,  or  pretended  to  be  seised(/c). 

If  the  conveyance  pleaded  be  of  an  estate  in  posses- 
sion, the  plea  must  aver  that  the  vendor  was  in  possession 
at  the  time  of  the  execution  of  the  conveyance(/).  And 
if  it  be  of  a  particular  estate,  and  not  in  possession,  it 
must  set  out  how  the  vendor  became  entitled  to  the  rever- 
sion(m).      But  although  a  bill  be  brought  by  an  heir, 

{h)  Michael.  Term,  12  Geo.  2,  1739  ;  2  Vivian's  MS.  Rep.  GO,  in 
Lincoln's  Inn  Library  ;  see  Jackson  v.  Rowe,  4  Russ.  514. 

(i)  Gilb.  For.  Rom.  57, 

{h)  Story  v.  Lord  Windsor,  2  Atk.  630  ;  and  see  Paige  v.  Lever, 
2*Ves.  jun.  450  ;   Dobson  v.  Leadbeater,  13  Ves.  jun.  230. 

(/)  Trevanian  v.  Mosse,  1  Vern.  246  ;  and  see  3  Ves.  jun.  226  ;  and 
3  Ves.  jun.  32. 

(m)  Hughes  v.  Garlh,  Ambl.  421. 

(I)  This  is  the  doctrine  of  Littleton,  with  which,  it  seems,  Gilbert 
agrees  ;  but  since  Littleton's  time  it  has-been  held,  that  the  releasee 
has  a  base  fee  determinable  by  the  entry  or  action  of  the  issue.  See 
Butler's  n.  (1)  to  Co.  Litt.  331,  a.  and  the  authorities  there  referred  to. 
But  now  estates  tail  may  be  barred  by  deed,  3  &  4  Will.  4,  c.  74. 

(*306) 


OF  PLEADING  A  PURCHASE. 


356 


the  plea  need  not,  on  that  account,  aver  the  purchase  to 
be  from  the  plaintiff's  ancestor(w). 

The  plea  must  also  distinctly  aver  that  the  considera- 
tion-money mentioned  in  the  deed  was  bona  Jide 'and  truly 
paid(o)(460),  independently  of  the  recital  of  the  purchase- 

(«)  Seymour  v.  Nosworth,  2  Freeni.  12S  ;  5  Ch.  Rep.  23  ;  Nels. 
Cha.  Rep.  135. 

(o)  Moor  V.  Mayhow,  1  Cha.  Ca.  34.     See  2  Atk.  241. 

(460)    See  4  Des.  2S7. 

The  point  decided  in  Wilkinson  v.  Scott,  17  Mass.  249,  was,  that 
an  action  would  lie  in  favor  of  the  grantor  against  the  grantee  to  re- 
cover a  part  of  the  consideration,  although  he  expressly  acknowledged 
in  the  deed  that  he  had  received  the  consideration  :  on  the  ground  that 
to  consider  the  acknowledgment  as  conclusive  evidence  of  the  fact,  in- 
justice might  be  done.  The  case  did  not  show  an  intent  to  contradict 
the  deed,  but  merely  to  shew  a  mistake  in  giving  security  for  the  con- 
sideration. The  consideration  is  known  to  be  arbitrary  and  is  frequent- 
ly difierent  from  the  real  consideration  of  the  bargain.  (14  Johns. 
210.)  '  It  is  so,  we  think  also  with  regard  to  the  acknowledgment  of 
payment.  It  is  but  a  receipt  which  is  always  open  to  explanation, 
though  under  seal.' 

In  the  subsequent  case  of  Griswold  v.  Messenger,  6  Pick.  617,  where 
the  case  was  very  similar ;  except  in  the  latter  case  the  parol  evidence 
was  offered  to  show  that  the  true  consideration  was  a  promise  on  the 
part  of  the  defendant  to  convey  the  same  land  to  a  third  person  ;  and 
upon  his  refusal  so  to  do,  the  action  was  sued  to  recover  the  value  :  the 
court  overruled  the  evidence  and  rendered  judgment  for  the  defendant. 

The  distinction  therefore,  would  seem  to  be,  that  where  a  particular 
consideration  is  expressed,  no  other  consideration  can  be  averred,  but 
any  consideration  not  inconsistent  with  that  expressed  in  the  deed  may 
be  averred,  and  the  true  consideration  shown,  when  the  object  is  not  to 
invahdate  the  deed.  Morse  v.  Shattuck,  4  n.  H.  R.  229  ;  Jackson  r. 
Pike,  9  Cowen,  69.  S.  P.  A  party  is  precluded  denying  any  consider- 
ation, but  not  the  amount  or  nature  of  it.  Belden  v,  Seymour  et  al., 
6  Conn.  R-  304. 

Whether  the  consideration  expressed  in  a  deed  is  conclusive  and 
not  to  be  controverted  by  parol  evidence  has  been  the  subject  of  some 
diversity  of  decision.  In  Jackson  r.  Howell.  4  Cowen,  427,  Savage, 
C.  J.  said  '  it  is  settled  that  where  there  is  a  consideration  stated  in  a 
deed,  and   it  is  not  said  for  other  considerations,  you  cannot  enter  into 


556 


OF  PLEADING  A  PURCHASE. 


proof  of  any  other,  for  that  would  be  contrary  to  the  deed  '  And  Rich- 
ardson, C.  J.  (4  N.  H.  R.  229)  'It  is  well  settled  as  a  general  rule 
that  in  a  court  of  law,  when  a  consideration  is  expressed  to  have  been 
paid  in  la  deed  made  for  the  purpose  of  conveying  land,  the  law  will 
permit  no  averment  to  the  contrary.  When  a  particular  consideration  is 
expressed,  no  other  consideration  can  be  averred,  but  any  consideration 
not  inconsistent  with  that  expressed  in  the  deed  may  be  averred,  and  the 
true  consideration  shown,  when  the  object  is  not  to  invalidate  the  deed.' 
•  And  parol  proof  is  admissible,  when  it  is  in  corrobonition  of  the  con- 
sideration.' Per  Savage,  C.  J.  9  Cowen,  69.  And  Tilghman,  C.  J. 
in  10  S.  6t  R*.  329.  '  It  is  clear,  beyond  doubt,  that  any  consideration, 
not  contradictory  of  that  which  is  mentioned  in  the  deed,  may  be  averred, 
and  proved  by  parol  evidence.  Where  a  conveyance  is  made  by  deed 
of  bargain  and  sale,  for  a  consideration  of  money,  it  may  be  averred, 
that  there  was  also  a  consideration  of  natural  love  and  aiiection,  in  con- 
sequence of  which,  the  deed  may  operate  by  way  of  covenant  to  stand 
seised.  In  the  case  before  us,  where  the  deed  is,  in  form  a  bargain  and 
sale,  in  consideration  of  money,  the  land  passes  by  bargain  and  sale, 
and  parol  evidence  would  be  inadmissible  for  the  purpose  of  showing, 
that  there  was  no  consideration  of  money.  That  would  be  in  direct 
contradiction  of  the  deed,  and  would  defeat  its  operation.  But,  that  be- 
sides the  consideration  of  money,  there  was  a  consideration  of  advance- 
ment to  the  daughter  of  the  bargainer,  and  that  the  true  intent  of  the 
parties  was,  to  convey  to  the  husband,  several  tracts  of  land,  valued 
altogether  at  $1000,  for  which  he  was  to  pay  but  $200,  after  the  death 
of  the  father,  and  the  remaining  $S00,  was  to  be  considered  as  an  ad- 
vancement to  the  daughter  '  And  Johnson,  J.  in  Garrett  v.  Stewart,  1 
M'Cord,  614,  '  Legitimate  considerations  are  either  good  or  valuable 
and  after  some  attention  to  the  subject  my  mind  inclines  to  the  conclu- 
sion that  the  distinction  is,  that  where  one  of  these  is  expressed,  parol 
evidence  cannot  at  law  be  permitted  to  show  the  other,  but  that  it  may 
be  admitted  to  show  a  greater  or  less  of  the  same  character.  This  is 
different  from  the  principle  laid  down  in  Hyne's  Representative  v.  Camp- 
bell, 6  Munroe's  R,.  286,  where  the  court  say  some  authorities  have  gone 
so  far  ;  where  consideration  alone  is  stated,  as  to  allow  averment  and 
proof  of  another  additional  consideration.  Whether  this  last  position  is 
tenable,  is  by  some  decisions  rendered  questionable.  But  the  additional 
consideration  proved  must  be  of  a  difterent  character  or  quality,  and 
not  a  mere  increase  ;  such  as  when  the  conveyance  said  one  dollar,  to 
add  thereto  by  inferior  proof  one  thousand. 

The  better  opinion,  however,  is,  timt  a  further  or  larger  consideration 
than  the  one  expressed   in  the  deed  may  be  proved   by  parol  evidence. 


OF  PLEADING  A  PURCHASE. 


Sol 


deed(/;)(461)  ;  for  if  the  money  be  not  paid,  the  plea  will 
be  (*)overruled((/)(462),  as  the  purchaser  is  entitled  to 
relief  against  payment  of  it(?)(463).  The  particular  con- 
sideration must,  it  should  seem,  be  stated(5),  although  this 

(p)   Mtiilland  v.  Wilson,  3  Atk.  8M. 
(q)   Hardingham  v.  Nicholls,  3  Atk.  304. 
(?)  See  siipia,  vol.  i.  p.  654. 

(s)   Millard's  case,  2  Freem.  43 ;  and  Snag's  case,  cited  ibid.  ;  and 
see  WagstafFr.  Read,  2  C'ha.  Ca.  156. 


Thus,  in  Belden  v.  Seymour,  8  Conn.  R.  304,  which  was  covenant  in 

respect  to  a  conveyance  of  land  :  and  the  consideration  acknowledged 
in  the  deed  was  $1800.  The  plaintiM"  proposed  to  prove  that  the  consi- 
deration was  in  fact  $2800  ;  but  the  evidence  was  not  admitted  at  the 
trial.  But  upon  a  motion  for  a  new  trial,  Daggett,  Peters  &  Williams, 
Justices  considered  that  the  evidence  was  admissible.  The  former 
judge  commented  upon  the  cases  cited  from  Johnson's  Reports,  viz.  1 
Johns.  139  ;  3  ib.  606  ;  7  ib.  341  ;  and  the  cases  of  Bradley  et  al.  v. 
Biodgelt,  Kiiby's  R.  22  ;  Northorp  r.  Speary,  1  Day's  R.  23  ;  and 
concluded  '  that  the  purpose  of  the  acknowledgment  and  receipt  in  a 
deed  is  to  prevent  a  resulting  trust  in  the  grantor ;  and  that  it  is  merely 
nominal.'  The  Chief  Justice  dissented,  considering  the  consideration 
expressed  in  the  deed  to  be  conclusive. 

In  Shepherd  r.  Little,  14  Johns.  210,  it  was  held,  that  assumpsit 
would  lie  to  recover  the  consideration  money  of  land  sold.  And  where 
the  payment  or  the  amount  of  the  consideration  becomes  a  material  in- 
quiry ;  parol  evidence  is  admissible  to  show  that  it  has  not  been  paid. 
Bowen  V.  Bel),  20  Johns.  338.  '  When  one  species  of  consideration  is 
expressed,  another,  or  different  one,  cannot  be  proved,  neither  can  parol 
proof  be  admitted  substantially  to  vary  or  contradict  a  written  contract;' 
Per  Wood  worth,  J.  ibid.  But  the  Court,  Parker,  C.  J.  in  Bullard  r. 
Briggs,  7  Pick.  p.  537,  says,  '  The  consideration  proposed  to  be  proved 
is  different  from  that  which  is  expressed  in  the  deed,  and  it  is  objected 
that  the  deed  is  conclusive  upon  this  point ;  but  wo  (hinU  it  has  been 
reasonably  settled,  that  this  matter  is  open  to  evidence.  More  or  less 
than  is  expressed  in  a  deed  may  be  proved  by  parol  evidence  as  the 
consideration,  and  even  a  different  consideration,  if  valuable,  may  be 
proved.' 

(461)  See  4  Des.  287. 

(462)  See  4  Des.  287  ;  and  see  Murray  v.  Fiusler,  2  Johns.  Ch. 
Rep.  157. 

(463)  See  4  Des.  287. 

(*306) 


358 


OF  PLEADING  A  PURCHASE. 


point  has  been  decided  othervvise(i)(464).  There  can, 
however,  be  no  objection  to  slate  the  consideration,  as,  if 
it  be  vahiabh'*,  the  plea  will  not  be  invalidated  bj  mere 
inadequacy(w)(465).  The  question  is  not  whether  the 
consideration  is  adequate,  but  whether  it  is  valuable.  For 
if  it  be  such  a  consideration  as  will  not  be  deemed  fraudu- 
lent within  the  statute  of  27th  Elizabeth,  or  is  not  merely 
nominal(a;),  or  the  purchase  is  such  a  one  as  would  hin- 
der a  puisne  purchase  from  overturning  it,  it  ou^ht  not 
to  be  impeached  in  equity. 

The  plea  must  also  deny  notice  of  the  plaintiff's  title 
or  claim(?/)(466)  previously  to  the  execution  of  the  deeds 
and  payment  of  the  purchase-money (2:)  ;  for  till  then  the 
transaction  is  not  complete  ;  and,  therefore,  if  the  pur- 
chaser have  notice  previously  to  that  time  he  will  be 
bound  by  it(«).  And  the  notice  so  denied  must  be 
notice  of  the  existence  of  the  plaintiff's  title,  and  not 
merely  notice  of  the  existence  of  a  person  who  could 
claim  under  that  title(6).  But  a  denial  of  notice  at  the 
time  of  making  the  purchase,  and  paying  the  purchase- 
money,  (*)is  good(467)  ;  and   notice  before  the  purchase 

{I)   Mooru.  Mayhow,  1  Cha.  Ca.  34  ;   Day  v.  Arundell,  Hard.  610. 

(«)  Basset  v.  Nosworthy,  Finch,  102;  Ambl.  767;  Mildmay  v. 
Mildmay,  Ambl.  767,  cited  ;   Bullock  v.  Sadlier,  Ambl.  764. 

{x)  See  Moor  v.  Mayhow,  1  Cha  Ca.  34  ;  Wagstaff*.  Read,  2 
Cha.  Ca.  156. 

(j/)  Lady  Bodmin  v.  Vendebendy,  1  Vern.  179  ;  Anon.  2  Ventr.  361, 
No.  2. 

{z)  Moor  r.  Mayhow,  1  Cha.  Ca.  34  ;  Story  v.  Lord  Windsor,  2 
Atk.  630;   Attorney-General  v.  Gower,  2  Eq.  Ca.  Abr.  686,  pi.  11. 

(a)    Vide  supra,  vol.  ii.  p.  274. 

(6)  Kelsall  v.  Bennett,  1  Atk.  622 ;  which  has  overruled  Bramton  v. 
Barker,  2  Vern.  159,  cited. 


(464)  See  4  Des.  287. 

(465)  See  4  Des.  287. 

(466)  See  4  Des.  287. 

(467)  See  4  Des.  287.     Murray  v.  Finster,  2  Johns.  Ch.  Rep.  155, 
157.     4  Des.  287. 

(*307) 


OF  PLEADING  A  PLRCHASE. 


359 


need  not  be  denied,  because  notice  before  is  notice  at  the 
time  of  the  purchase,  and  the  party  will,  in  such  case,  on 
its  being  made  appear  that  he  had  notice  before,  be  liable 
to  be  convicted  of  perjury (c). 

The  notice  must  be  positively  and  not  evasively  deni- 
ed(d),  and  must  be  denied,  whether  it  be  or  be  not  charg- 
ed by  the  bill(e)(468).  If  particular  instances  of  no- 
tice, or  circumstances  of  fraud,  are  charged,  the  facts 
from  which  they  are  inferred  must  be  denied  as  special- 
ly and  particularly  as  charged(y)(469). 

But  he  need  only  by  this  plea  deny  notice  generally(^), 
unless  where  facts  are  specially  charged  in  the  bill  as  evi- 
dence of  notice(/i). 

Notice  must  also  be  denied  by  answer,  for  that  is  mat- 
ter of  fraud,  and  cannot  be  covered  with  the  plea,  be- 
cause the  plaintiff  must  have  an  opportunity  to  except  to 
its  sufficiency  if  he  think  fit(r)(470)  ;  but  it  must  also 
be  denied  by  the  plea,  because  otherwise  there  is  not 
a  complete  plea  in  court  on  which  the  plaintiff  may  take 
issue(^')(471). 

(c)  Jones  I".  Thomas,  3  P.  Wms.  243. 

(d)  Cason  v.  Round,  Prec.  Cha.  226  ;  and  see  2  Eq.  Ca.  Abr.  682, 
(D.)   n.  (b). 

(e)  Aston  v.  Curzon,  and  Weston  r.  Berkely,  3  P.  Wms.  244,  n. 
(/)  ;  and  see  the  6th  lesol.  in  Brace  r.  Duke  of  Marlborough,  2  P. 
Wms.  491. 

(f)  Meder  v.  Bii t,  Gilb.  Eq.  Rep.  185 ;  Radford  v.  Wilson,  3  Atk. 
815;  and  see  Jerrard  v.  Saunders,  2  Ves.  jun.  187;  4  Bro.  C.  C. 
322  ;  6  Dow.  230. 

(«•)    Ovey  r.  Leighton,  2  Sim.  &  Stu.  234. 

(/i)  Pennington  v.  Beechey,  2  Sim.  &  Stu.  282  ;  Thring  r.  Kdgar, 
2  Sim.  &  Stu.  274. 

(i)   Anon.  2  Cha.  Ca.  161  ;   Price  r.  Price,  1  Vern.  185. 

<h)  Harris  i'.  Ingledew,  3  P.  Wms.  91  ;  Meads  v.  Duchess  of  King- 
ston, Mitf.  on  Plead.  2d  edit.  216,  n. 

(468;   See  Snelgrove  v.  Snelgrove,  4  Des.  287. 

(469)  See  4   Des.  288. 

(470)  See  4  Des.  288. 

(471)  See  4.  Des.  288. 


360 


OF  PLEADING  A  PURCHASE. 


Althougli  a  purchaser  omit  to  deny  notice  by  answer, 
he  will  be  allowed  to  put  in  the  point  of  notice  by  way 
of  answer(/),  and  the  omission  will  not  invalidate  his 
(*)plea,  if  it  is  denied  by  that(m).  If  notice  is  omitted 
to  be  denied  by  the  plea,  and  the  plaintiff  reply  to  it,  the 
defendant  has  then  only  to  prove  his  purchase,  and  it  is 
not  material  if  the.  plaintitf  do  prove  notice,  as  he  has 
waved  setting  down  the  plea  for  argument,  in  which  case 
it  would  have  been  overruled(?i).  If,  however,  a  bill  is 
exhibited  against  a  j)urchaser,  and  he  plead  his  purchase, 
and  the  bill  is  thereupon  dismissed,  a  new  bill  will  lie 
charging  notice,  if  the  point  of  notice  was  not  charged  in 
the  former  bill,  or  examined  to  ;  and  the  former  proceed- 
ings cannot  be  pleaded  in  bar(o).  But  if  notice  is 
neither  alleged  by  the  bill  nor  proved,  and  the  defendant 
by  his  answer  deny  notice,  an  inquiry  will  not  be  granted 
for  the  purpose  of  affecting  him  with  noiice(j9). 

A  plea  of  a  purchase  for  valuable  consideration  with- 
out notice,  will  not  be  allowed  where  the  purchaser  might 
by  due  diligence  have  ascertained  the  real  state  of  the 
th\e(q). 

If  a  purchaser's  plea  of  valuable  consideration  without 
notice  be  falsified  by  a  verdict  at  law,  and  thereupon 
a  decree  is  made  against  the  purchaser,  and  he  then 
carries  an  appeal  to  the  House  of  Lords,  it  will  be  dis- 
missed, and  the  decree  affirmed  without  further  in- 
quiry(r)(472). 

{I)   Anon.  2  Ch.  Ca.  161. 

(m)   Coke  v.  Wilcocks,  Mose.  73. 

(n)  Harris  v.  Ingledew,  3  P.  Wms.  91  ;  Eyre  v.  Dolphin,  2  Ball  & 
Beat.  302. 

(o)  Williams  v.  Williams,  1  Cha.  Ca.  262. 

{p)  Hardy  tJ.  Reeves,  5  Ves.  jun.  426. 

(q)  Jackson  v.  Rowc,  2  Sim.  &  Stu.  472.  See  and  consider  the 
case.     It  has  been  heard  upon  appeal  before  the  Lord  Chancellor. 

(r)   Lewes  v.  Fielding,  Colles's  P.  C.  361. 

(472)  See  Snelgrove  v.  Snelgrove,  4  Des.  288. 
(*308) 


OF  PLEADING  A  PURCHASE.  Qgi 

The  title  of  a  purchaser  for  valuable  consideration 
without  notice  is  a  shield  to  defend  the  possession  of  the 
(*)purchaser(5),  not  a  sword  to  attack  the  possession  of 
others(i)(473).  It  is  clear  that  it  will  protect  his  posses- 
sion from  an  equitable  title,  although  even  that  has  been 
sometimes  questioned(M)  ;  whether  it  will  avail  against  a 
legal  title  is  perhaps  doubtful(474). 

In  Burlase  v.  Cooke(a),  Lord  Nottingham  held  the 
plea  to  be  good  against  a  legal  estate ;  but  in  the  subse- 
quent case  of  Rogers  v.  Seale(?/),  he  is  reported  to  have 
been  of  a  different  opinion,  and  to  have  decreed  accord- 
ingly. But  unfortunately  both  these  cases  appear  to  be 
very  ill  reported (475). 

In  Parker  v.  Blythmore(2),  the  Master  of  the  Rolls 
thought  the  plea  good  against  a  legal  estate(476). 

But  in  Williams  v.  Lambe(a),  upon  a  bill  filed  by 
a  dowress  against  a  bona  fide  purchaser,  without  notice  of 
the  marriage,  Lord  Thurlow  overruled  the  plea.  He  said 
that  the  only  question  was,  whether  a  plea  of  purchase 
without  notice  would  lie  against  a  bill  to  set  out  dower ; 
that  he  thought  where  the  party  is  pursuing  a  legal  title, 
as  dower  is,  the  plea  did  not  apply,  it  being  only  a  bar 
to  an  equitable,  not  to  a  legal  claim(477). 

In  a   later  case(6),  Lord  Rosslyn  considered  it  impos- 

(s)  Patterson  v.  Slaughter,  Ambl.  292. 

[t)  See  3  Ves.  jun.  225. 

(h)  See  1  Ball  &  Beatty,  171. 

(x)   2  Freem.  24. 

(y)  2  Freem.  84. 

{z)  2  Eq.  Ga.  Abr.  79,  pi.  1. 

(a)   3  Bro.  C.  C.  264. 

(6)   Jerrard  v.  Saunders,  2  Ves.  jun.  454. 


(473)  See  4  Des.  288. 

(474)  See  4  Des.  288. 

(475)  See  4  Des.  288. 

(476)  See  4  Des.  288. 

(477)  See  Snelgrove  v.  Sncls;rov€,  4  Des.  288. 


3g2  ^^  PLEADING  A  PURCHASE. 

sible  that  Rogers  v.  Seale  could  be  the  decision  of  Lord 
Nottingham,  and  decreed  that  the  plea  could  stand 
against  a  legal  as  well  as  an  equitable  title. 

Lord  Rossljn  did  not,  however,  mention  the  case  of 
Williams  v.  Lambe,  which  is  against  the  doctrine  he  laid 
down  ;  nor,  indeed,  did  he  notice  the  case  of  Parker  v. 
Blythmore,  which  is  in  favor  of  it.  It  is  much  to  be  la- 
mented that  all  the  authorities  were  not  considered. 

(*)To  argue  from  principle,  it  seems  clear  that  the  plea 
is  a  protection  against  a  legal  as  well  as  an  equitable 
claim  ;  and  as  the  authorities  in  favor  of  that  doctrine  cer- 
tainly preponderate,  we  may,  perhaps,  venture  to  assert 
that  it  will  protect  against  both.  But  in  a  very  late  case, 
the  Master  of  the  Rolls  followed  the  case  of  Williams  v. 
Lambe,  and  was  of  opinion  that  the  defence  was  of  no 
avail  against  a  legal  title(c)(478). 

(c)  Collins  V.  Archer,  1  Russ.  &  Myl.  284. 

(478)  In  Snelgrove  v.  Snelgrove,  4  Des.  289,  wherein  most  of  the 
learning  contained  in  this  chapter  is  examined,  DESAUSSURE,  Chan- 
cellor, in  allusion  to  the  text,  says,  "  I  am  not  entirely  satisfied,  that  this 
is  a  correct  conclusion.  The  inclination  of  my  mind  is  the  other  way. 
It  should  be  remembered,  that  the  plea  protects,  by  the  court  refusing 
to  aid  the  complainant  in  setting  up  a  title.  Now,  when  the  title  at- 
tempted to  be  set  up,  is  an  equitable  one,  it  seems  very  reasonable  (hat 
the  court  should  forbear  to  give  its  assistance  in  setting  up  such  equita- 
ble title  against  another  title  set  up  by  a  fair  purchaser.  But  when  the 
complainant  comes  with  a  legal  title,  I  do  not  perceive  how  he  caii  be 
refused  the  aid  of  the  court." 

(*310) 


APPENDIX. 

No.  I. 

JVotice  by  the  owner  and  his  Agent,  of  the  Agenfs  intention  to 

hid{a). 

Sir, 

I,  THE  undersigned  A,  of  owner  of  the  estates 

intended  to  be  sold  by  you  at  by  public  auction,  on 

the  day  of  next,  do  hereby  give  you  notice,  that 

I  have  appointed  the  undersigned  jB.,  of,  &c.  to  bid  on  my  behalf, 
or  formy  use,  at  the  same  sale.  And  I,  the  above-named  J?.,  do 
hereby  give  you  notice,  that  I  have  accordingly  agreed  to  bid  at  guch 
sale,  for  the  use  of  the  said  A. 

To  Mr.  Auctioneer. 


No.  II. 

JVotice  by  the  Agent  of  his  intention  to  bid{b). 

Sir, 

I,  the  undersigned  A.  of,  &c.  agent  of  B.  of,  &c.  owner  of  the 
estates  intended  to  be  sold  by  you  at  by  public  auction, 

on  the  day  of  next,  do  hereby  give  you  notice, 

that  I  intend  to  bid  at  the  same  sale,  on  the  behalf,  or  for  the  use  of  the 
above-named  B. 

To  Mr.  Auctioneer. 

(a)  Vide  supra,  vol.  i.  p.  18. 

(b)  Vide  tupra,  vol.  i.  p.  19. 

(*311) 


364  APPENDIX. 


No.  III. 


JVolice  by  the  Agent,  and   the   Person  appointed   bij  him,   of  such  Per- 
son''s  intention  to  bid{c). 

Sir, 

I,  the  undersigned  A.,  of,  &:c.  agent  of  B,  of,  &c.  owner  of  the 
estates  intended  to  be  sold  by  you  at  by  public  auction, 

(*)on  the  day  of  next,  do  hereby  "give  you  notice, 

that  I  have  appointed  the  undersigned  C.  of,  &c.  to  bid  at  the  same 
sale,  on  the  behalf,  or  for  the  use  of  the  above-named  B.  And  I,  the 
said  C,  do  hereby  give  you  notice,  that  1  have  accordingly  agreed  to 
bid  at  such  sale,  for  the  use  of  the  said  B. 

To  Mr.  Auctioneer. 


No.  IV. 
Conditions  of  Sale {d). 

I.  That  the  highest  bidder  shall  be  the  buyer :  and  if  any  dispute 
arise  as  to  the  last  or  best  bidder,  the  lot  in  dispute  shall  be  put  up  at  a 
former  bidding. 

II.  That  no  person  shall  advance  less  at  any  bidding  than  ...  /.(I)  ; 
or  retract  his  or  her  bidding(e). 

III.  That  every  purchaser  shall  immediately  pay  down  a  deposit,  in 
the  proportion  of .  •  .  .  /.  for  every  100/.  of  his  or  her  purchase-money, 
into  the  hands  of  the  auctioneer  (II)  ;  and  sign  an  agreement  for  pay- 
ment of  the  remainder  to  the  proprietor,  on  the  day  of  next, 
at  at  which  time  and  place  the  purchases  are  to  be  completed, 
and  the  respective  purchasers  are  then  to  have  the  actual  possession  of 
their  respective  lots  ;  all  outgoings  to  that  time  being  cleared  by  the 
vendor. 

IV.  That  within  from  the  day  of  the  sale,  the  vendor  shall, 
at  his  own  expense,  prepare  and  deliver  an  abstract  of  his  title  to  each 

(c)  Vide  supra,  vol.  i.  p.  19. 

(d)  Vide  svpra,  vol.  i.  p.  30. 

(e)  Payne  v.  Cave,  6  Term  Rep.  148.  Vide  supra,  vol,  i.  p.  43.  This  has  now  become  an 
usual  condition. 

(I)  Or  thus,  "  than  such  sum  shall  be  named  by  the  auctioneer  at  the  time." 

(II)  This  is  scarcely  ever  done  in  the  country  ;  but  the  deposits  are  paid  to  the  agent  of 
the  vendor. 

(*312) 


APPENDIX.  365 

purchaser,  or  his  or  her  solicitor;  and  shall    deduce  a  good    title  (I)  to 
the  lots  sold. 

V.  That  upon  payment  of  the  remainder  of  the  purchase-money  at 
the  time  above  mentioned,  the  vendoc  shall  convey  the  lots  to  the  respec- 
tive purchasers  :  each  purchaser,  at  his  or  her  own  expense,  to  prepare 
the  conveyance  to  him  or  her ;  and  to  (*)teuder  or  leave   the   same  at 

for  execution  hy  the  vendor (/). 

VI.  That  the  auction-duty  of  7d.  in  the  pound  shall,  immediately  af- 
ter the  sale,  be  paid  to  the  auctioneer  by  the  vendor  and  purchaser,  in 
equal  moieties (g-) (II). 

VII.  That  if  any  of  the  purchasers  shall  neglect  or  fail  to  comply  with 
the  above  conditions,  his  or  her  deposit-money  shall  be  actually  forfeit- 
ed to  the  vendor,  who  shall  be  at  full  liberty  to  re-sell  the  lot  or  lots 
bought  by  him  or  her,  either  by  public  auction  or  private  contract ;  and 
the  deticiency  (if  any)  occasioned  by  such  second  sale,  together  with  all 
expenses  attending  the  same,  shall  immediately  after  the  same  sale,  be 
made  good  to  the  vendor  by  the  defaulter  at  this  present  sale  :  and  in 
case  of  the  nonpayment  of  the  same,  the  whole  thereof  shall  be  recover- 
able by  the  vendor,  as  and  for  liquidated  damages(/t),  and  it  shall  not  be 
necessary  to  previously  tender  a  conveyance  to  the  purchaser. 

Lastly,  That  if  any  mistake  be  made  in  the  description  of  the  premi- 
ses, or  any  other  error  whatever  shall  appear  in  the  particulars  of  the 
estate,  such  mistake  or  error  shall  not  annul  the  sale,  but  a  compen- 
sation or  equivalent  shall  be  given  or  taken,  as  the  case  may  require(j). 
Such  compensation  or  equivalent  to  be  settled  by  two  referees,  or  their 
umpire  ;  each  party  within  ten  days  after  the  discovery  of  the  error,  and 
notice  thereof  given  to  the  other  party,  to  appoint  one  referee  by  writing  ; 
and  in  case  either  party  shall  neglect  or  refuse  to  nominate  a  referee 
within  the  time  appointed,  the  referee  of  the  other  party  alone  may  make 
a  final  decision.  If  two  referees  are  appointed,  they  are  to  nominate 
an  umpire  before  they  enter  upon  business,  and  the  decision  of  such 
referees  or  umpire  (as  the  case  may  be)  shall  be  final. 

Condition  to  be  inserted  where  the   Title-deeds  cannot  be  delivered 
That  as  the  title-deed:^  which  concern  this  estate  relate  to  other  estates 

(/)  Ftde»upra,  vol.  i.  p.  39.  (g)     Vide  supra,  \o\.\.  \>.  ■ii. 

{h)     Vide  supra,  \o\.  1.  p.  40.  («)   Vide  suprii,  vol.  i.  p.  41. 

(k)     Vide  supra,  vol.  i.  p.  38. 


(I)  Where  the  estate  is  leasehold,  and  the  vendor  cannot  produce  the  lessor's  title,  this 
condition  should  go  on  thus :  "  to  the  lease  granted  of  the  premises  ;  but  the  purchaser  shall 
not  be  entitled  to  require,  or  call  for  the  title  of  the  lessor."     Vide  supra,  vol.  i.  |>.  38. 

(II)  This  condition  should  be  omitted  where  the  estate  is  sold  by  assignees  of  a  bankrupt. 
Vide  supra,  vol.  i.  p.  13,  14. 

(*313) 


366  APPENDIX. 

of  greater  value,  the  vendor  shall  retain  the  same  in  his  custody,  and  en- 
ter into  the  usual  covenants  (to  be  prepared  {*)hy  his  solicitor,  and  at  his 
expense)  for  the  production  of  them  to  the  respective  purchasers  :  but 
all  attested  copies  which  may  be  required  of  such  deeds  shall  be  had  and 
made  at  the  expense  of  the  person  requiring  the  same.  « 

fVliere  an  Estate  is  intended  to  be  sold  in  Tjots,  and  the  Title-deeds 
are  to   be  delivered  up,   the    follotoing   Condition  may    ht  inserted  : 

That  as  the  aforesaid  lots  are  holden  under  the  same  title,  the  pur- 
chaser of  the  greater  part  in  value  of  the  said  estate  shall  have  the  cus- 
tody of  the  title-deeds,  upon  his  entering  into  the  usual  covenants  for  the 
production  thereof  to  the  purchaser  or  purchasers  of  the  remaining  or 
other  lots:  If  the  largest  portion  in  value  of  the  estate  shall  remain 
unsold,  the  seller  shall  be  entitled  to  retain  the  deeds  upon  entering  into 
such  covenants  as  aforesaid  ;  all  such  covenants  to  be  prepared  by  and 
at  the  expense  of  the  person  or  persons  requiring  the  same ;  who  may 
have  attested  copies  of  such  deeds  at  his,  her  or  their  own  expense. 

Or  this  : 

That  the  title-deeds  shall  be  retained  by  the  vendor,  until  all  the  es- 
tates now  offered  for  sale  shall  be  sold,  when  they  shall  be  delivered 
over  to  the  largest  purchaser,  upon  his  entering  into  the  usual  covenants 
for  the  production  thereof  to  the  other  purchasers  ;  such  covenants  to 
be  prepared  by  and  at  the  expense  of  the  person  or  persons  requiring 
the  same.  Whilst  the  deeds  remain  in  the  seller's  hands,  he  shall  pro- 
duce them  to  the  several  purchasers  when  required,  and  every  purchaser 
may  at  any  time  have  attested  copies  of  the  deeds  at  his  own  expense. 

Where  the  Property  is  considerable,  it  may  be  advisable  to  make  a 
stipulation  as  to  the  expense  of  the  attested  copies,  according  to 
the  value  of  the  lots.     As,  for  instance  : 

That  all  attested  copies  of  the  title-deeds  shall  be  made  and  delivered 
at  the  expense  of  the  person  requiring  the  same,  unless  his  or  her  pur- 
chase-money exceeds  .  .  .  /.  but  does  not  amount  to  -  .  .  /.  ;  in  which 
case  the  vendor  shall  furnish  the  attested  copies  of  all  such  deeds  and 
writings  as  shall  be  deemed  necessary,  according  to  professional  usage, 
at  the  joint  expense  of  him  and  the  purchaser  ;  and  if  the  purchase-mo- 
ney exceeds  ....  Z.  the  vendor  shall  furnish  the  same  at  his  own  ex- 
pense. 

(*314) 


APPENDIX.  367 

(*)No.  V. 

Agreements  to  be  signed  by  the    Vendor  and  Purchaser  after  Sales  by 

Auctionil). 

It  seems  aduisable  to  have  tii}o  sets  of  Conditions,  at  the  end  of  one 
of  ichich  may  be  printed  an  Jigreement  for  the  JJiictioneer,  or  Jigent  of 
the  Vendor,  to  sign ;  and  at  the  end  of  the  other  may  be  printed  an 
Agreement  for  the  Purchaser  to  sign. 

The  Agreement  to  be  signed  by  the  Auctioneer,  or  Agent  of  the  Vendor, 

may  be  thus  . 

I   do  hereby  acknowledge,  that  has  been  this  day  declared  the 

purchaser  of  lot  of  the   estates   mentioned   in   the   above-written 

particulars,  at  the  sum  of  .   .   .  /.  ;  and  that  he  has  paid  into  my  hands 
...  Z.  as  a  deposit,  and  in  part  payment  of  the  said  purchase-money  ; 
and  I  do  hereby  agree,  that  the  vendor  shall,  in  all  respects,  fulfil  on  his 
part   the   above-written  conditions   of  sale.     As  witness  my  hand,  this 
day  of 
Purchase-money  -     -     -     -  £ . 
Deposit-money     -     -     -     - 


Remainder  unpaid  -     -  £ . 
Witness, 

The  Piirchuser  may  sign  the  folloiving  Agreement  : 

I  do  hereby  acknowledge,  that   I  have  this   day  purchased  by  public 
auction,  lot  of  the  estates  mentioned  in  the  above-written  particu- 

lars, for  the  sum  of  ..../.  ;  and  have  paid  into  the  hands  of 
the  sum  of  .   .  .   .  /.  as  a  deposit  and  in  part  payment  of  the  said  pur- 
chase-money ;  and   I  do  hereby  agree   to  pay  the  remaining  sum  of 
..../.  unto  at  on  or  before  the  day  of  and 

in  all  other  respects,  on  my  part,  to  fulfil  the  above-written  conditions 
of  sale.     As  \vitness  my  hand,  this  day  of 

Purchase-money  -     -     -     '   £> . 

Deposit-money     -     -     -     . 


Reniainder  unpaid  -     -   £,. 
Witness. 


(/)   Ft<<€  «i/pr«  vol.  I.  p.  52. 

(*315) 


368  APPENDIX. 

(*)No.  \l. 

Agreement  for  Sale  of  an  Estate  by  Private  Contract{m) . 

Articles  of  agreement  made  and   entered   into  this  day  of 

between  A.,  of,  &c.  for  himself,  his  heirs,  executors  and 

administrators,  of  the  one  part,  and   B.,  of,  &c.  for  himself,  his 

heirs,  executors  and  administrators,  of  the  other  part,  as  follow  : 

viz. 

■  The  said  Jl.  doth  hereby  agree  with  the  said  B.  to  sell  to  him  the  mes- 
suages, &c.  (parcels)  with  their  appurtenances,  at  or  for  the  price  or 
sum  of  ..../. ;  and  that  he  the  said  A.  w.ill  within  one  month  from 
the  date  hereof,  at  his  own  expense,  make  and  deliver  unto  the  said  B. 
or  his  solicitor,  an  abstract  of  the  title  of  him  the  said  Jl.  to  the  said 
messuages  and  premises  ;  and  will  also,  at  his  own  expense,  deduce  a 
clear  title  thereto.  And  also  that  the  said  A.,  or  his  heirs,  and  all  other 
necessary  parties,  shall  and  will,  on  or  before  the  day  of 

next,  on  receiving  of  and  from  the  said  B.,  his  executors  or  administra- 
tors, the  said  sum  of  ..../.  at  the  costs  and  charges  of  him  the  said 
B;  his  heirs,  executors,  administrators  or  assigns,  execute  a  proper  con- 
veyance, for  conveying  and  assuring  the  fee-simple  and  inheritance  of 
and  in  all  the  said  messuages  and  premises,  with  their  appurtenances, 
unto  the  said  B..,  his  heirs  or  assigns,  free  from  all  incumbrances. 

And  the  said  B.  hereby  agrees  with  the  said  A.,  that  he  the  said  B., 
his  heirs,  executors,  administrators  or  assigns,  shall  and  will,  on  the 
execution  of  such  conveyance  as  aforesaid,  pay  the  sum  of  .  .  .  /.  unto 
the  said  A.,  his  executors  or  administrators. 

And  it  is  hereby  further  agreed  by  and  between  the  said  A.  and  B.  as 
follows :  viz. 

That  the  conveyance  shall  be  prepared  by  and  at  the  expense  of  the 
said  B,f  and  that  the  same  shall  be  settled  and  approved  of  on  the  parts 
of  the  said  A.  and  B.  by  their  respective  counsel ;  and  that  each  of  them, 
the  said  Ji.  and  B.,  shall  pay  the  fees  of  his  own  counsel. 

And.  that  all  rates,  taxes  and  outgoings,  payable  for  or  in  respect  of 
the  premises  to  the  day  of  shall  be  paid  anJ  discharged  by 

the  said  A.,  his  executors  or  administrators. 

And  lastly,  that  if  the  said  A.  shall  not  deliver  an  abstract  of  his 
title  to  the  said  B.,  or  his  solicitor,  before  the  expiration  of  (*)one  ca- 
lendar month  from  the  date  hereof,  or  shall  not  deduce  a  good  and 
marketable  title  to  the  said  messuages  and  premises,  before  the  said 

(m)   Vide  supra,  vol.  i.  p.  63. 
(*316)    (*317) 


APPENDIX. 


369 

day  of  then  and  in  either  of  the  mid  cases,  immediately 

after  the  expiration  of  the  said  one  calendar  month,  or  the  said 
day  of  (as    the  case  may  be),  this  present   agreement  shall    be 

utterly  void  to  all  intents  and  purposes  whatsoever,  and  the  jurisdiction 
of  equity  wholly  barred  ;  it  being  the  true  intent  and  meaning  of  the 
parties  hereto,  that  in  the  event  aforesaid  execution  of  this  agreement 
shall  not  be  enforced  by  any  court  of  equity,  notwithstanding,  any  rule 
(if  such  there  be)  that  time  cannot  be  made  the  essence  of  a  contract, 
or  any  other  rule  or  maxim  whatsoever(?i).     In  witness,  &c. 

A  provision  may  also  be  inserted  in  agreements,  making  time  the  es- 
sence of  the  contract,  in  case  the  purchase-money  is  not  paid  at  the  day 
appointed  ;  but  clauses  making  agreements  void  if  a  title  is  not  made, 
or  the  purchase-money  paid  by  a  slated  time,  should  never  be  inserted  un- 
less it  be  the  express  intention  of  the  parties.  Where  time  is  not  deemed 
material,  clauses  to  the  following  effect  should  be  inserted  : 

That  the  said  B.  and  his  heirs  shall  \l■^ve,  receive  and  take  the  rents 
and   profits  of  the  said  messuages   and    premises,  from  the  day 

of  next,  for  his  and  their  proper  use. 

And  that  if  the  said   conveyance  shall  not  be  executed  by  the  neces- 
sary parties,  and   the  said   purchase-money  paid   on  or  before  the  said 
day  of  then  and  in  such  case  the  said  E.,  his  heirs,  ex- 

ecutors or  administrators,  shall    l>om  the  same  day  of 

pay  interest  for  the  said  purchase-money  unto  the  said  Jl.,  his  executors 
or  administrators,  after  the  rate  of  ])er  cent,  per  ami. 


No.  VII. 

Bratt  V.  Ellis[o),  C  B.  Mich,  and  Hil.  Terms,  45  Geo.  HI. 

John  Goodwin  being  indebted  to  Ellis,  the  defendant,  an  auctioneer, 
deposited  the  title-deeds  of  some  housc3  with  him,  as  a  security  ;  and 
gave  him  a  written  authority  to  sell  them  by  auction,  at  any  time  before 
Midsummer  1803.  They  were  (*)accordingly  put  up  at  Garraway's  ; 
and  not  fetching  the  sum  expected,  they  were  bought  in  by  Goodwin. 
Ellis  not  being  paid,  put  up  the  houses  again  in  September  1804,  undeV 
the  usual  conditions.  The  plaintiff  was  declared  the  highest  bidder  at 
315/.  ;  paid  a  deposit  of  75/.  and  signed  an  agreement  to  complete  the 
contract.  The  defendant  delivered  possession  to  the  plaintifT,  who  ex- 
pended  about   10/.  in  repairs  ;  and  the  defendant  sent  the  deeds  to  the 

(h)  Fide  »upro,  ch.  8,  sect.  2,  vol.  I.  p.  441.  (o)    ViHe  $iipra,vo\.  i.  p.  45. 

vou.  II.  47  (*31S) 


370      .  APPENDIX. 

plaintiff's  attorney,  who  approved  of  the  title,  and  prepared  a  convey- 
ance ;  and  the  defendant  undertook  to  procure  Goodwin  to  attend  and 
execute  the  deed.  Goodwin,  however,  upon  being  applied  to,  refused 
to  complete  the  contract,  which  was  made  without  his  authority.  The 
plaintiff  brought  the  present  actien  to  recover  the  depqsit-money  and 
interest,  and  the  expense  of  perusing  the  abstract,  preparing  the  convey- 
ance, &c.  ;  and  the  damages  the  plaintiff  had  sustained  by  losing  such 
a  good  bargain.  The  plaintiff  gave  315/.  for  the  houses,  and  a  survey- 
or, examined  on  his  behalf,  proved  that  they  were  worth  761/.  The  de- 
fendant suffered  judgment  to  go  by  default.  Upon  the  execution  of  the 
writ  of  inquiry  of  damages,  the  defendant's  counsel  admitted,  that  he 
was  liable  to  repay  the  deposit,  with  interest,  and  fair  expenses  incurred 
in  investigating  the  title,  &c.  But  as  it  appeared  by  the  declaration 
that  the  defendant  was  only  an  auctioneer,  and  Goodwin  was  the  owner, 
he  insisted  that  the  defendant  was  not  answerable  for  the  difference  of 
value.  The  sheriff,  in  his  charge  to  the  jury  (which  was  specially  sum- 
moned), said,  it  was  admitted  on  all  hands,  that  the  deposit  and  interest, 
and  expenses,  must  be  paid  to  the  plaintiff.  AVith  respect  to  the  de- 
mand for  the  loss  of  the  bargain,  he  thought  that  the  demand  was  re- 
coverable ;  for  the  defendant  had  admitted  that  he  had  sold  the  property 
without  authority  ;  but  the  amount  of  the  damages  was  in  their  discretion. 
They  would  consider  whether  it  would  have  sold  for  751/.  If  they  be- 
lieve the  surveyor,  it  would,  be  quite  competent  to  give  the  whole,  or 
what  they  pleased.  The  jury  returned  a  verdict  for  350/.  being  up- 
wards of  250/.  as  damages  for  loss  of  the  bargain.  The  Court  of 
Common  Pleas,  however,  granted  a  rule  to  show  cause  why  the  writ  of 
inquiry  should  not  be  set  aside,  and  the  defendant  let  in  to  plead  in  the 
action,  upon  paying  into  Couit  the  deposit-money,  and  interest,  and 
on  payment  by  the  defendant  to  the  plaintiff  of  his  costs  occasioned 
thereby,  together  with  his  costs  of  the  present  application.  Upon 
showing  cause,  the  Court  made  the  rule  absolute  ;  on(*)payment  to  the 
plaintiff  of  the  deposit,  wi(h  interest,  the  costs  of  investigating  the  title, 
and  the  costs  of  the  action,  as  behveen  atlorney  and  client. 


I 


No.  vm. 

Jones  v.    Dyke   and   o1hers{p).       Hereford  Svmmer  ,3ssizcs,  cor. 
Macclonald,  C.  JB. 

The  circumstances  of  the  case  were  shortly  these.     Some  estates  in 

( p)   Vide  supra,  vol.  i.  p.  45. 
(*319) 


APPENDIX.  371 

Wales  having  been  advertised  for  sale,  the  plaintiff  came  to  town,  and 
after  some  treaty  with  the  defendants,  who  were  the  auctioneers  em- 
ployed, he  agreed  to  purchase  the  estate  in  question,  at  975/.  ;  and  it 
was  agreed  that  he  was  to  pay  the  deposit  in  nine  days,  and  to  give  his 
note  for  it  at  that  date,  which  he  accordingly  did.  Tuchin,  one  of  the 
defendants,  by  the  desire  of  his  partner  Dyke,  gave  the  plaintiff  a  re- 
ceipt for  the  deposit,  and  signed  a  printed  particular,  which  together 
amounted  to  an  agreement  in  writing. 

In  a  few  hours  after  this  transaction,  Dyke  and  Tuchin  called  on  a 
friend  of  the  plaintiff's  to  acquaint  him  that  (hey  had  just  received  a  let- 
ter from  Wales,  stating  that  the  estates  were  sold  for  more  money,  and 
requesting  the  particular  and  receipt  to  be  returned  ;  and  the  plaintiff 
refusing  to  relinquish  the  agreement,  and  having  immediately  returned 
to  Wales,  they  by  the  next  post  sent  to  him  his  note  of  hand,  and  a  par- 
ticular signed  by  him,  both  of  which  he  instantly  returned. 

The  100/.  was  tendered  in  payment  of  the  note,  and  refused  :  the 
residue  of  the  purchase-money  was  prepared  in  time,  and  deposited  at 
a  banker's. 

The  plaintiff  filed  a  bill  in  equity  against  the  owner  of  the  estate, 
and  his  trustees  for  sale,  who  denied  the  authority  of  the  defendants  to 
sell,  in  consequence  of  which  the  plaintiff  was  advised  to  dismiss  his 
bill.. 

The  plaintiff  then  brought  an  action  against  the  defendants,  in  which 
he  proved  by  two  witnesses  that  the  estate  purchased  was  worth  2,117/. 
10s.  so  that  he  lost  upwards  of  1,140/.  by  breach  of  the  agreement. 

It  appearing  that  the  defendants  had  no  authority  to  sell,  the  plaintiff 
had  a  verdict  by  consent,  for  261/.  the  Judge  thinking  (*)the  items 
of  which  that  sum  was  composed  reasonable,  but  the  plaintiff  did  not 
obtain  any  damages  for  the  loss  of  his  bargain. 

The  sum  of  261/.  was  thus  made  up  :  M .     s.     d. 

Costs  of  the  plaintiff's  solicitor  ----r---     47     194 

Costs  of  the  trustees  in  equity,  about      ------30      -      - 

Interest  of  975/.  from  April  1804  to  April  1807  -  -  -  146  6  - 
Journies  to  London  and  Llandilo,  about  20  days,  ^ 


} 


horse-hire  and  travelling  expenses       -     - 
Journey  to  London        - 16     16- 

£.  260    19     4 

(*320) 


372  AITE.NDIX. 

No.   IX. 

JVyatl  V.  Alleniq),  Reg.  Llg.  B.  1771,  fol.  576. 

The  bill  was  filed  by  ^\  yatt,  charging  that  he,  as  agent  for  the  de- 
fendant Allan,  purchased  an  estate  by  auction,  but  that  the  defendant 
having  denied  the  commission,  he  himself  was  forced  to  complete  the 
purchase.  The  purchase-money  was  435/.  The  defendant  by  his  an- 
swer denied  that  he  employed  the  plaintiff  to  purchase  the  estate. 

The  Chancellor  directed  an  issue  to  try  the  fact,  and  that  if  the  jury 
found  that  an  authority  was  given  by  Allan,  they  should  indorse  on  the 
postea  to  what  amount  such  authority  extended.  The  jury  found  that 
Allan  did  give  an  authority  to  the  extent  of  400/.  Upon  the  cause 
coming  back  on  the  equity  reserved,  the  defendant  was  ordered  to  pay 
the  plaintiff  the  400/.  and  ihe  plaintiff  was  to  assign  the  estate,  and  the 
defendant  was  to  pay  the  costs  both  at  law  and  in  equity. 


No.  X. 


Sir  John  JVlorshcad  and  others  v.  Frederick{r)  and  others.      Ck. 
20th  February  1 806. 

Certain  estates  of  the  late  Sir  John  Frederick  were  devised  to 
trustees  upon  trust,  by  mortgage  or  sale  thereof,  to  raise  34,000/. 
for  the  benefit  of  his  two  daughters,  Lady  Morshead  and  Miss 
Thistlethwayte.  Part  of  his  estate  consisted  of  a  house  in  the 
(*)  occupation  of  Smith,  Payne  and  Smith,  the  bankers.  In  1751,  a 
ground  lease  of  this  house  was  granted  for  sixty-one  years,  at  56/.  a 
year.  The  representative  of  the  lessee  assigned  the  lease  to  Smith  and 
Company,  subject  not  only  to  the  original  ground  rent  of  56/.  a  year, 
but  also  to  an  additional  rent  of  210/.  A  bill  was  filed  for  carrying  the 
trusts  of  Sir  John  Frederick's  will  into  execution.  With  the  approba- 
tion of  all  parties,  the  house  in  question  was  offered  for  sale,  and  rep- 
resented as  subject  to  the  ground  lease  at  56/.  a  year.  Smith  and  Com- 
pany employed  an  auctioneer  to  enter  into  a  treaty  with  the  plaintiffs' 
solicitors  for  the  purchase  of  the  house,  and  he  was  informed  by  them 
that  it  was  subject  to  the  lease  at  56/.  a  year.  The  auctioneer  valued 
the  house  as  being  subject  to   the  lease,  and  to   no  other  rent,  charge 

{q)    FiV^  wpra,  vol.  i.  p.  46  (r)    Vide  !>upra.yo\.    i.  p.72. 

(*321) 


APPENDIX.  373 

or  incumbrance,  at  6,150/.  and  verbally  agreed  with  the  plaintifTs'  soli- 
citors for  the  purchase  by  Smith  and  Company  of  the  house  at  that 
sum  :  the  contract  was  referred  to  the  Master,  who  approved  of  it,  and 
by  an  order  in  the  cause,  Smith  and  Company  were  directed  to  pay  the 
pui  chase-money  into  Court,  to  the  credit  of  the  cause,  and  it  was  or- 
dered that  they  should  be  let  into  receipt  of  the  rents  from  the  last 
quarter  day.  The  title  was  approved  of  en  behalf  of  the  purchasers, 
and  the  money  was  paid  into  the  Bank  according  to  the  order.  A  few 
months  afterwards,  and  before  the  conveyance  was  executed,  applica- 
tion was  made  to  Smith  and  Company  for  payment  of  the  rent  of  210/. 
to  the  person  entitled  to  it.  Upon  this,  Smith  and  Company  insisted 
upon  an  abatement  in  the  purchase-money,  which  the  plaintiffs  would 
not  accede  to.  A  motion  was  then  made  to  the  Court  by  Smith  and 
Company,  that  the  money  paid  into  the  Bank  might  be  repaid  to  them, 
and  the  contract  for  the  purchase  of  the  house  rescinded.  In  support 
of  this  motion,  the  auctioneer  swore,  that  he  valued  the  house  as  sub- 
ject to  the  56/.  a  year  only,  and  that  he  was  ignorant  of  its  being  sub- 
ject to  any  other  rent  or  outgoing.  The  solicitor  for  Smith  and  Com- 
pany swore,  that  no  notice  was  taken  in  the  abstract  of  the  lease,  by 
which  the  210/.  a  year  was  reserved.  One  of  the  bankers  swore,  that 
when  the  money  was  paid  into  the  Bank,  and  when  the  valuation  was 
made,  he  and  his  partners  believed  that  the  auctioneer  had  been  made 
fully  acquainted  with  all  the  charges,  whether  consisting  of  rents  or 
otherwise,  which  in  anywise  affected  the  house  ;  and  that  his  not  being 
made  acquainted  with  the  rent  of  210/.  was  occasioned  by  some  un- 
designed omission  or  mistake. 

{*)In  opposition  to  these  affidavits,  the  solicitor  of  the  plaintifis 
swore,  that  he  had  been  in  receipt  of  the  rent  of  66/.  a  year  nearly 
thirty  years,  which  had  been  paid  by  Smith  and  Company  since  1797, 
and  that  he  had  never  heard  that  the  house  was  ever  granted  by  any 
under  lease,  or  was  made  subject  to  any  other  rent  than  the  rent  of  56/. 
until  long  after  the  sale  to  the  bankers.  And  that  upon  inquiry  he 
found, //la/  //le  ren/ o/ 210/.  had  been  paid  bij  the  bankers  themselves 
ever  since  they  purchased  the  lease. 

The  motion  came  on  before  Lord  Eldon,  who  expressed  an  opinion 
in  favor  of  the  purchaser's  right  to  rescind  the  contract,  but  did  not 
decide  the  point.  It  afterwards  came  before  liOrd  Erskine,  who  held 
this  to  be  a  proper  case  for  the  interference  of  equity,  on  the  ground  of 
mistake,  and  accordingly  granted  the  motion.  The  circumstance  of 
both  rents  being  payable  by  the  purchasers,  his  Lordship  thought  im- 
material, ^as  it  appeared  that  they  had  not  communicated  that  circum- 
stance to  their  broker,  and  the  magnitude  of  their  concerns  might  easily 
account  for  the  omission.     It  could  not  be  imagined,  that  any  man 

(*322) 


374  APPENDIX. 


would  willingly  conceal  such  a  fact  from  a  broker  employed  by  him  to 
value  any  property  he  wished  to  purchase  :  and  it  was  equally  absurd 
to  suppose,  that  if  a  broker,  in  valuing  any  property,  was  ignorant  of 
the  existence  of  an  additional  rent  of  200/.  no  relief  lay  against  such  a 
mistake  in  a  court  of  equity. 


No.  XI. 

A  Bill  for  extending  the  Provisions  of  the  Statute  of  Frauds[s). 

Whereas  by  an  act  passed  in  the  twenty-ninth  year  of  his  Majesty 
Charles  the  Second,  entitled  "  An  Act  for  the  Prevention  of  Frauds 
and  Perjuries,"  it  is  enacted,  that  no  action  shall  be  brought  whereby 
to  charge  any  person  upon  any  contract  or  sale  of  lands,  tenements  or 
hereditaments,  or  any  interest  in  or  concerning  them,  unless  the  agree- 
ment upon  which  such  action  shall  be  brought,  or  some  memorandum 
or  note  thereof,  shall  be  in  writing,  and  signed  by  the  party  to  be  charg- 
ed therewith,  or  some  other  person  by  him  lawfully  authorized  :  And 
whereas  a  similar  (*)enactment  is  contained  in  an  act  passed  in  Ireland, 
in  the  seventh  year  of  the  reign  of  King  William  the  Third  :  And 
whereas  it  has  been  held  that  an  agreement  signed  by  one  party,  or  his 
agent,  is  binding  upon  him,  and  that  it  is  not  necessary  for  a  party  or 
his  agent  tb  subscribe  his  name  to  the  agreement  for  the  purpose  of 
authenticating  it,  where  the  name  is  introduced,  in  the  agreement  itself; 
and  in  some  cases  concluded  contracts  have  been  allowed  to  be  col- 
lected and  made  out  from  receipts  for  purchase-money,  letters,  cor- 
respondence or  proposals,  or  the  like,  not  assuming  the  ordinary  shape 
of  an  agreement  or  a  memorandum,  or  a  note  thereof:  And  whereas 
courts  of  equity  have,  on  the  ground  of  part  performance,  held  certain 
cases  of  parol  agreements  not  to  fall  within  the  mischief  of  the  enact- 
ments aforesaid :  And  whereas  it  is  expedient  to  alter  and  amend  the 
law  as  it  is  at  present  administered  under  the  said  statutes  in  the  respects 
aforesaid  ;  Be  it  therefore  enacted,  that  no  action  or  suit  shall  be 
brought  or  maintained  whereby  to  charge  any  person  upon  any  con- 
tract or  sale  of  lands,  tenements  or  hereditaments,  or  any  interest  in  or 
concerning  them,  unless  the  agreement  upon  which  the  same  is  brought, 
or  some  memorandum  or  note  thereof,  shall  be  in  writing,  and  signed 
by  the  parties  to  be  charged  therewith,  or  some  other  persons  by  them 
lawfully  authorized  at  the  foot  (hereof,  in  the  usual  manner  of  subscrib- 
ing regular  agreements. 

And  be  it  further  enacted,  that  letters  or  correspondence  passing 

(5)    Vide  supra,  vul.  I,  i>.  86. 
(*323) 


APPENDIX.  375 

between  the  parties  or  their  authorized  agents,  or  an  offer  in  writing'  by 
the  one  party,  and  acceptance  in  writing  by  the  other,  shall  not  be  deem- 
ed in  any  case  to  amount  to  an  agreement  upon  which  an  action  or  suit 
may  be  brought  or  maintained  under  the  provisions  of  the  said  recited 
acts  or  of  this  act. 

And  be  it  further  enacted,  that  neither  delivery  of  possession  of  the 
estate  which  is  the  subject  of  the  contract,  nor  payment  of  the  pur- 
chase-money or  rent  agreed  to  be  paid  for  the  estate,  or  expenditure  of 
money  by  any  of  the  parties  on  the  estate,  or  any  other  act  whatsoever, 
shall  be  deemed  to  amount  to  a  part  performance  of  any  agreement 
made  upon  any  contract  or  sale  of  lands,  tenements  or  hereditaments, 
or  any  interest  in  or  concerning  them,  so  as  to  enable  a  court  of  equity 
to  decree  a  specific  performance  of  any  such  agreement,  where  the  same 
is  not  signed  in  the  same  manner  required  by  this  act. 

Provided  always,  and  be  it  enacted,  that  where  any  agreement  shall 
be  bond  Jide  made  upon  any  contract  or  sale  of  lands,  (*, tenements  or 
hereditaments,  or  any  interest  in  or  concerning  the  same,  and  the  same 
ghall  not  be  signed  in  the  manner  by  this  act  required,  to  enable  an  ac. 
tion  or  suit  to  be  brought  or  maintained  thereupon,  but  where  it  is  upon 
a  sale,  the  seller,  upon  the  faith  and  footing  of  such  contract,  shall  have 
let  the  purchaser  into  possession  of  the  property  sold,  or  the  purchaser, 
upon  the  faith  and  footing  of  such  contract,  shall  have  paid  to  the  seller 
the  purchase-money,  or  any  part  thereof,  or  having  been  let  into  posses- 
sion of  the  property,  shall,  with  the  acquiescence  of  the  seller,  have 
made  any  substantial  repairs  or  lasting  improvements  upon  such  pro- 
perty, and  where  in  any  such  case  either  of  the  parties  to  such  contract 
shall  refuse  to  perforin  the  same  on  his  part,  the  other  of  the  said  parties 
shall  or  may  maintain  an  action  against  the  party  so  refusing  for  the  re- 
covery of  the  damage  sustained  by  him  by  the  payment  of  any  such  pur- 
chase-money, or  by  the  expenditure  in  such  repairs  or  improvements,  or 
by  the  loss  of  the  rents  and  profits  or  possession  of  the  property  sold, 
as  the  case  may  be ;  and  in  every  such  action  brought  by  a  seller,  the 
defendant,  the  purchaser  shall  be  at  liberty  to  set-off' against  the  plain- 
tift''s  demand  the  amount  of  any  purchase-money  paid  to  the  plaintiff" 
by  the  defendant,  with  interest  thereon,  at  the  rate  of  four  pounds  per 
centum  per  annum,  and  the  amount,  of  any  monies  actually  expended 
by  the  defendant  in  substantial  repairs  or  lasting  improvements  on  the 
estate  of  the  plaintiff,  with  his  acquiescence  ;  and  in  every  such  action 
brought  by  a  purchaser,  the  defendant,  the  seller  shall  be  at  liberty  to 
set  off  against  the  plaintiff' 's  demand  the  amount  of  any  rents  and  pro- 
fits of  the  property  sold  which  shall  have  been  received  by  the  purcha- 
ser, or  an  occupation-rent  for  the  property  sold,  where  it  shall  Jiave 
been  in  the  plaintiff's  own  possession,  as  shall  be  just ;  and  where 

(*324) 


376  APPENDIX. 

any  such  agreement  as  last  aforesairl  is  upon  a  letting,  and  the  in- 
tended tenant  having  been  let  into  possession  by  the  intended  landlord 
(the  other  contracting  party),  shall,  upon  the  faith  and  footing  of  such 
contract,  with  the  acquiescence  of  the  landlord,  have  made  any  substan- 
tial repairs  or  lasting  improvements  on  such  property,  and  the  landlord 
shall  afterwards  refuse  to  perform  the  agreement,  in  any  such  case  the 
tenant  may  maintain  an  action  against  the  party  so  refusing  for  recovery  of 
the  damages  sustained  by  the  expenditure  in  such  repairs  or  improve- 
ments ;  and  in  such  action,  the  defendant  shall  be  allowed  such  set-off  as 
shall  be  just ;  and  the  amount  of  the  damages  recovered  in  any  such  action 
by  (*)a  purchaser  or  tenant  shall  be  and  be  deemed  an  equitable  lien  on 
the  estate  contracted  to  be  sold  or  let,  as  and  from  the  day  on  which 
such  contract  was  entered  into,  and  shall  carry  interest  from  the  time 
the  verdict  is  given  ;  and  in  every  such  case  as  aforesaid,  where  a  lien 
is  to  be  established  on  the  estate  contracted  to  be  sold  or  let,  or  where 
an  account  is  to  be  taken  between  the  parties,  either  party  may  file  a 
bill  in  equity  against  the  other  for  the  purpose  of  enforcing  the  rights 
hereby  given. 

And  whereas  by  the  said  Act  of  the  twenty-ninth  year  of  his  late 
Majesty  King  Charles  the  Second,  it  is  enacted,  that  no  leases,  estates 
or  interests,  either  of  freehold,  of  terms  of  years,  or  any  uncertain  in- 
terest, not  being  copyhold  or  customary  interest,  of,  in,  to  or  out  of  any 
messuages,  manors,  lands,  tenements  or  hereditaments,  shall  at  any 
time  after  the  four-and-twentieth  day  of  June  therein  mentioned,  be  as- 
signed, granted  or  surrendered,  unless  it  be  by  deed  or  note  in  writing, 
signed  by  the  parly  so  assigning,  granting  or  surrendering  the  same,  or 
their  agents  thereunto  lawfully  authorized  by  writing  or  by  act  and  ope- 
ration of  law  :  And  whereas  it  is  expedient  that  assignments  and  sur- 
renders of  leases,  estates  or  interests,  of,  in,  to  or  out  of  any  messua- 
ges, manors,  lands,  tenements  or  hereditaments  which  do  not  exceed  the 
term  of  three  years  from  the  making  thereof,  may  hereafter  be  made 
without  any  deed  or  note  in  writing ;  Be  it  therefore  enacted,  that  from 
and  after  the  all   leases  of,  in,  to  or  out  of  any  manors, 

messuages,  lands,  tenements  or  hereditaments,  not  exceeding  the  term 
of  three  years  from  the  making  thereof,  whereupon  the  rent  reserved  to 
the  landlord  during  such  term  amounted  at  the  time  of  the  creation 
thereof  to  three-fourth  parts  at  the  least  of  the  full  improved  value  of 
the  subject  demised,  may  be  assigned  or  surrendered  without  any  deed 
or  note  in  writing. 

And  whereas  by  the  said  recited  acts  it  is  further  enacted,  that  all  de- 
vises of  lands,  devisable  either  by  the  statute  of  wills  or  by  custom, 
shall  be  in  writing  signed  by  the  party  devising,  or  by  some  other  in  his 
presence  and  by  his  express  directions,  and   shall  be  attested  and  sub- 

(*326) 


APPENDIX.  377 

scribed  in  the  presence  of  the  devisor  by  three  or  four  credible  witness- 
es, or  else  they  shall  be  void  :  And  whereas  it  is  expedient  to  alter  and 
amend  the  law  as  it  is  ad.ninistered  under  the  said  statutes,  in  the  re- 
spect last  aforesaid  ;  Be  it  therefore  further  enacted,  that  where  any 
such  devise  as  aforesaid  in  writing,  shall,  without  fraud,  bo  attested  and 
subscribed  by  three  or  four  credible  witnesses,  as  part  of  the  transaction 
which  they  are  called  upon  to  witness,  and  before  (*)they  depart  from 
the  house  or  place  wherein  or  whereat  the  will  was  signed  by  the  testa- 
tor, the  same  shall  be  deemed  an  effectual  attestation  within  the  said 
statutes,  although  not  subscribed  in  the  actual  presence  of  the  devisor, 
or  where  he  might  see  the  witnesses  subscribe  the  same. 

And  be  it  further  enacted,  that  this  act  shall  operate  on  all  such 
agreements  and  deposits  as  aforesaid  only  as  shall  be  made  after  the 
passing  of  this  act,  and  upon  all  such  devises  as  aforesaid  only  where 
the  devisors   making   the  same  shall   die  after  the   passing  of  this  act. 


No.  XII. 
Ex  parte   Tomkhis(t),  L.  I.  Hall,  '2'dd  Jiugiisl  181G. 

A  mortgagee  obtained  an  order  for  sale  of  the  estates  under  a  bank- 
ruptcy. The  assignees,  without  leave  of  the  Court,  appointed  several 
puffers  to  bid,  and  two  lots  were  knocked  down  to  then).  Lord  Eldon 
determined  that  they  must  be  held  to  their  bargain,  although  they  swore 
that  they  believed  there  was  no  real  bidder.  And  in  answer  to  an  ap- 
plication, that  if  there  should  prove  to  be  a  real  bidder,  the  assignees 
might  only  be  compelled  to  pay  the  price  which  he  bid,  the  Lord  Chan- 
cellor, said,  that  although  it  was  a  hard  case,  they  must  pay  the  sum 
at  which  the  lots  were  knocked  down.  The  order  was  for  a  sale,  and 
they  were  not  authorized  to  buy  the  estate  in ;  their  biddings  might 
have  prevented  the  estate"  from  selling  to  a  bond  fide  bidder,  and  it 
was  impossible  for  the  Court  to  say  that  (he  estate  would  not  have 
fetched  more  than  the  last  real  bidding,  if  the  putfer  appointed  by  the 
assignees  had  not  afterwards  bid.  A  majority  of  the  creditors  in  such 
a  case  could  not  bind  the  rest,  and  if  assignees  choose  to  act,  they 
ought  to  procure  i\\\  indemnity  from  the  creditors. 

(t)    Vide  supra,  vol.  1,  p.  73. 

VOL.   11.  48  (*326) 


378  APPENDIX. 

No.  XIII. 

Observations  on  the  Jinnuily  Act{u). 

To  this  passage  a  note  was  added  in  a  former  edition,  in  which  it  was 
contended  that  the  17  Geo.  III.  c.  26,  commonly  called  (*)the  Annuity 
Act,  extended  to  money  considerations  only,  notwithstanding  the  case 
of  Crosly  V.  Arkwright,  2  Term  Rep.  603.  The  authorities  relied  on, 
were  Crespigny  v.  Wittenoom,  4  Term  Rep.  790  ;  Hutton  v.  Lewis,  5 
Term  Rep.  639 ;  Ex  parte  Fallon,  5  Term  Rep.  283  ;  and  Horn  v. 
Horn,  7  East,  529  ;  to  which  might  be  added  Doe  v.  Philips,  1  Taunt. 
356.  But  the  point  is  not  now  of  much  importance.  The  decisions 
under  the  Annuity  Act  had  gone  far  beyond  the  letter,  and  in  many 
cases  even  beyond  the  spirit  of  the  law-:  and  perhaps  there  was  not  any 
act  in  the  statute-book  on  which  so  many  cases  had  been  decided  within 
any  thing  like  the  same  space  of  time.  The  expense  of  the  memorial 
was  very  considerable,  and  the  effect  of  the  decisions,  by  increasing  the 
risk  of  the  transaction,  drove  fair  purchasers  out  of  the  market,  and 
lowered  the  price  of  life  annuities  ;  first,  because  the  number  of  buyers 
was  small  ;  and  secondly,  because  the  purchasers  required  to  be  paid 
not  only  the  common  rate  of  annuity  interest,  but  also  the  value  of  the 
risk  of  the  transaction  being  void  under  the  act.  The  Atinuity  Act, 
after  having  been  thirty-five  years  in  operation,  was  repealed  by  the  53 
Geo.  III.  c.  141,  except  as  to  annuities  granted  before  the  passing  of 
the  repealing  statute ;  and  other  provisions  were  substituted  in  lieu 
thereof. 

The  first  section  repeals  the  old  act. 

The  second  section  requires,  that  within  thirty  (in  the  old  act  it  was 
twenty)  days  after  the  execution  of  every  deed,  bond,  instrument,  or 
other  assurance,  whereby  any  annuity  or  rent-charge  shall,  from  and 
after  the  passing  of  the  act,  be  granted  for  one  or  more  life  or  lives,  or 
for  any  term  of  years,  or  greater  estate  determinable  on  one  or  more 
life  or  lives,  a  memorial  of  the  date  of  every  such  deed,  bond,  instru- 
ment or  other  assurance,  of  the  names  of  all  the  parties,  and  of  all  the 
witnesses  thereto,  and  of  the  person  or  persons  for  whose  life  or  lives 
such  annuity  or  rent-charge  shall  be  granted,  and  of  the  person  or  per- 
sons by  whom  the  same  is  to  be  beneficially  received,  the  pecuniary 
consideration  or  considerations  for  granting  the  same,  and  the  aimual 
sum  or  sums  to  be  paid,  .shall  be  enrolled  in  the  High  Court  of  Chan- 
cery, in  the  form  or  to  the  effect  following,  with  such  alterations  therein 
as  the  nature  and  circumstances  of  any  particular  case  may  reasonably 
require  :  otherwise  every  such  deed,  bond,  instrument  or  other  assur- 
ance, shall  be  null  and  void  to  all  intents  and  purposes. 

(u)   Vide  supra,  vol.  I,  p.  281. 
(*327) 


APPENDIX. 


379 


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(*328) 


380  AITENDIX. 

(^'■) The  "great  object  of  this  provision  was  to  give  publicity  to  (he 
transaction,  and  at  the  same  time  (o  avoid  unnecessary  expense  to  the 
grantor  ;  and  by  the  simplicity  of  the  memorial  to  avoid,  if  possible,  fu- 
ture litigation.  As  the  act  passed  the  House  of  Commons,  the  memo- 
rial was  required  to  contain  only  four  things,  viz.  1.  the  date  of  the 
grant  ;  2.  tlie  name  of  the  grantor ;  3.  the  name  of  the  person  by 
whom  the  annuity  was  to  be  beneficially  received  ;  and  4.  the  amount 
of  the  annuity.  The  statement  of  the  consideration  was  omitted,  lest 
it  should  open  a  door  to  the  mischiefs  which  the  act  was  intended  to 
guard  against.  The  schedule  stands  as  it  was  amended  in  the  House 
of  Lords.  The  nature  of  the  instrument  is  required  to  be  stated,  to 
which  there  can  be  no  particular  objection,  although  it  is  not  mentioned 
in  the  body  of  the  act.  The  next  amendment  substitutes  the  names  of 
the  parties  for  the  name  of  tlie  grantor.  This  seems  open  to  objection, 
for  in  many  cases  it  may  not  appear  who  is  the  grantor  :  for  example, 
if  Richard  is  possessed  of  a  lease  in  trust  for  Edward,  and  Edward 
sells  an  annuity  to  Frederick,  the  deed  would,  in  the  ordinary  course, 
be  made  between  Richard  of  the  first  part,  Edward  of  the  second  part, 
and  Frederick  of  the  third  part,  and  thus  the  memorial  would  stand  ; 
from  which  it  would  be  inferred  that  Richard  and  not  Edward  was  the 
grantor.  The  provision  in  the  act,  as  it  passed  the  House  of  Commons, 
was  not  open  to  this  objection.  The  third  column  requires  the  names 
of  the  parties  simply  to  be  stated,  and  does  not  seem  to  require  their 
additions  to  be  inserted,  but  in  the  next  column  where  the  names  of  the 
witnesses  are  required,  a  blank  is  left  in  the  example,  manifestly  fur  the 
addition,   "  E.    F.   of  ."     In   complying    with  both  these 

requisitions,  the  additions  of  the  persons  should  be  inserted,  and  this  is 
expressly  required  in  the  latter  instance.  This  fourth  coliiiTiii  was  an 
amendment  in  the  Lords.  In  thf  lale  case  of  Darwin  v.  Lincoln,  5 
Barn.  &  Aid.  444,  it  was  held  that  a  witness  described  in  the  memorial 
as  the  clerk  of  the  attorney  was  not  well  described,  because  his  place  of 
abode  was  not  stated.  This  led  to  the  passing  of  another  Act  of 
Parliament,  which  will  presently  be  noticed. 

The  memorial  must  contain  the  Christian  name  of  the  subscribing  wit- 
ness to  the  securities.  The  initial  of  the  Christian  name  is  not  suffi- 
cient. Cheek  v.  JefTries,  2  Barn.  &  Cress.  1,  and  this  has  been  follow- 
ed in  a  late  decision  upon  an  annuity  granted  by  Lord  Strathmore.  It 
would  be  prudent  to  state  (*)which  of  the  several  executions  the  wit- 
nesses attested.  It  is  sufficient  to  state,  that  the  annuity  was  granted 
for  the  lives  of  Ji.  B.  &c.  without  stating  more  than  their  names,  or 
adding  that  the  annuity  was  granted  for  their  joint  lives,  or  the  life  of 
the  survivor,  or  fur  a  term  of  years  determinable  on  those  lives.  Bar- 
ber r.   Gamson,  4  Barn.  &    Aid.   281.     Another  amendment   requires 

(*329)  (*330} 


APPENDIX.  3S1 

the  statement  of  the  consideration  and  how  paid.  The  latter  words  it 
was  at  tirst  thojight  might  be  understood,  in  ivhat  manner,  which  would 
lead  to  all  the  inconveniences  intended  to  be  remedied,  but  it  now  seems 
agreed,  thnt  the  words  are  not  open  to  that  construction  :  the  meaning 
i.s,  that  the  amount  of  the  consideration  shall  be  stated,  and  whether  paid 
in  money,  note.^,  bills,  ^:c.  This  is  clear  from  the  explanation  in  the 
act ;  it  need  not  therefore  be  stated  by  or  to  whom  the  money  was  paid, 
and  there  is  now  no  exception  to  the  rule  that  a  payment  by  an  agent  is  a 
payment  by  the  principal.  It  is  observable  that  the  amendment  requires 
the  pecuniary  consideration  or  considerations  to  be  stated.  Perhaps  it 
escaped  observation,  that  the  act  extends  as  well  to  annuities  granted 
for  money's  worth,  as  for  money  ;  but  as  the  act  stands,  it  is  clear  that 
none  but  money  considerations  need  be  stated  in  the  memorial.  It  has 
been  decided  in  James  v.  James,  2  Brod.  &  Bing.  702,  (and  see  Blake 
V.  Attersoll,  2  Barn.  &  Cress.  875  ;  Tetley  v.  Tetley,  4  Bing.  214,) 
that  an  annuity  granted  in  consideration  of  a  conveyance  of  a  life  in- 
terest in  land  does  not  require  enrolment.  The  Court  said  that  the 
words  in  the  tenth  section,  declaring  that  the  act  shall  not  extend  "  to 
any  voluntary  annuity  granted  without  regard  to  pecuniary  considera- 
tion or  money's  worth,"  import  that  money's  worth  may,  in  certain 
cases,  be  "a  pecuniary  consideration"  within  the  meaning  of  the  act ; 
as  where  the  grantee  pays  for  the  annuity  in  part,  or  in  whole,  by  goods 
or  merchandize,  with  a  nominal  or  perhaps  real  value  imposed  upon 
them,  to  be  converted  into  money  by  the  grantor,  and  where  the  object 
of  the  grantor  was  to  raise  money,  and  such  appears  to  be  the  real  na- 
ture of  the  transaction,  however  it  may  be  disguised.  But  considerinor 
the  second  and  tenth  sections  together,  and  the  intent  of  the  Legisla- 
ture as  it  is  to  be  collected  therefrom,  the  Court  was  of  opinion  that 
the  act  does  not  extend  to  cases  of  fair  and  bond  fide  sale  of  landed 
property,  whether  freehold  for  life  or  leasehold  for  term  of  years,  where 
the  consideration  in  part  or  in  whole  may  be  an  annuity  to  be  paid  to 
the  vendor.  In  sucb  cases,  the  consideration  for  granting  the  annuity, 
being  (*)an  estate  in  land  bona  fide  sold  and  conveyed,  did  not  appear 
to  the  Court  to  be  a  pecuniary  consideration  or  money's  worth  within 
the  meaning  of  the  statute. 

A  description  in  the  memorial  of  an  underlease  of  leaseholds  as  an  as- 
signment, is  a  sufficient  compliance  with  the  act,  which  is  satisfied  by  a 
description  of  the  instrument  in  popular  language,  although  that  be  not 
according  to  its  strictly  legal  effect.  Butler  v.  Capel,  2  Barn.  &  Cress. 
251. 

The  form  of  the  memorial  is  the  only  part  of  the  act  in  which  any 
substantial  amendment  was  made  in  the  House  of  Lords. 

It  has  been  decided,  that  the  memorial  need  not  state  that  the  annuity 

(*331) 


382  APPENDIX. 

is  redeemable  That  clause  does  not  come  within  the  schedule,  and  as 
Abbott,  C.  J.  remarked,  if  any  thing  not  specified  in  the  schedule  be 
necessary,  the  schedule  itself  would  be  worse  than  useless.  The  name 
of  the  party  in  whose  favor  a  warrant  of  attorney  is  given  need  not  be 
stated  in  the  memorial ;  Yems  v.  Smith,  3  Barn.  &  Aid.  206  ;  nor  is  it 
necessary  to  state  for  what  penal  sum  it  authorizes  a  confession  of  judg- 
ment.    Barber  v.  Gamson,  4  Barn.  &  Aid.  281. 

The  third  section  provides,  that  if  any  such  annuity  shall  be  granted 
by,  or  to  or  for  the  benefit  of  any  company  exceeding  in  number  ten  per- 
sons, which  company  shall  be  formed  for  the  purpose  of  granting  or  pur- 
chasing annuities,  it  shall  be  sutficientin  any  such  memorial  to  describe 
such  company  by  the  usual  firm  or  name  of  trade. 

The  fourth  section  enacts,  that  in  every  deed,  bond,  instrument  or 
other  assurance,  whereby  any  annuity  or  rent  charge  shall,  from  and 
after  passing  of  this  act,  be  granted  or  attempted  to  be  granted,  for  one 
or  more  life  or  lives,  or  for  any  term  of  years,  or  greater  estate  determi- 
nable on  one  or  more  life  or  lives,  where  the  person  or  persons  to  whom 
such  annuity  shall  be  granted  or  secured  to  be  paid,  shall  not  be  entitled 
thereto  beneficially,  the  name  or  names  of  the  person  or  persons  who  is 
or  are  intented  to  take  the  annuity  beneficially,  shall  be  described  in 
such  or  the  like  manner  as  is  hereinbefore  required  in  the  enrolment ; 
otherwise  every  such  deed,  instrument  or  other  assurance  shall  be  null 
and  void. 

The  object  of  this  provision  was  to  prevent  one  person  from  secretly 
buying  an  annuity  in  the  name  of  another.  It  was  thought  right  that  the 
grantor  should  know  with  whom  he  was  dealing :  in  all  other  respects 
an  annuity  deed  is  now  placed  on  the  same  footing  with  other  deeds. 
This  is  a  great  point  (*)gained.  If  the  consideration  is  money,  it  must 
be  correctly  stated  under  the  last  stamp  act ;  if  it  is  stated  as  a  money 
consideration,  and  any  part  is  paid  in  goods,  the  annuity,  as  we  shall 
presently  see,  may  be  set  aside. 

The  fifth  section  enables  the  grantor  to  obtain  a  copy  of  the  deeds 
by  a  Judge's  summons. 

The  sixth  section  enacts,  that  if  any  part  of  the  consideration  for  the 
purchase  of  any  such  annuity  or  rent-charge  shall  be  returned  to  the 
person  advancing  the  same,  or  in  case  such  consideration,  or  any  part 
of  il,  shall  be  paid  in  notes,  if  any  of  the  notes,  with  the  privity  and 
consent  of  the  person  advancing  the  same,  shall  not  be  paid  when  due, 
or  shall  be  cancelled  or  destroyed  without  being  first  paid  ;  or  if  such 
consideration  is  expressed  to  be  paid  in  money,  but  the  same  or  any  part 
of  it  shall  be  paid  in  goods  ;  or  if  the  consideration  or  any  part  of  it 
shall  be  retained,  on  pretence  of  answering  the  fiiture  payments  of  the 
annuity  or  rent-charge,  or  any  other   pretence ;    in  all  and  every  the 

(*332) 


APPENDIX.  383 

aforesaid  cases  it  shall  be  lawful  for  the  person  by  whom  the  annuity  or 
rent-charge  is  made  payable,  or  loliosepropertij  is  liable  to  be  charged  or 
affected  thereby,  to  apply  to  the  Court  in  which  any  action  shall  be 
brought  for  payment  of  the  annuity  or  rent-charge,  or  judgment  entered, 
by  motion,  to  stay  proceedings  on  the  action  or  judgment,  and  if  it 
shall  appear  to  the  Court  that  such  practices  as  aforesaid,  or  any  of 
them,  have  been  used,  it  shall  and  may  be  lawful  for  the  Court  to  order 
every  deed,  bond,  instrument  or  other  assurance,  whereby  the  annuity  or 
rent-charge  is  secured,  to  be  cancelled,  and  the  judgment,  if  any  has 
been  entered,  to  be  vacated.  See  Barber  v.  Gamson,  4  Barn.  &  Aid. 
281.   • 

This  is  siaiilar  to  a  provision  in  the  old  act,  with  the  addition  of  the 
words  in  italics,  and  the  power  is  enlarged  to  cancel  every  security  for 
the  annuity. 

The  seventh  section  provides,  that  a  book  shall  be  kept  for  the  enrol- 
ment of  the  memorials,  20s.  to  be  paid  for  the  entry  of  the  memorial.  Is. 
for  every  certificate  of  entry  and  copy,  and  Is.  for  every  search. 

The  eighth  section  renders  void  contracts  with  infants,  and  the  ninth 
punishes  brokers  taking  beyond  10s.  per  cent  for  brokerage.  These 
provisions  are  copied  from  the  old  act. 

The  tenth  and  last  section  enacts,  that  the  act  shall  not  extend  to 
iicotland  or  Ireland,  nor  to  any  annuity  or  rent-charge  given  by  will  or 
by  marriage  settlement,  or  for  the  advancement  (*)ofachild,  nor  to  any 
annuity  or  rent-charge  secured  upon  freeholds  or  copyhold  or  customary 
lands,  in  Great  Britain  or  Ireland,  or  in  any  of  His  JMaj est y^s  posses 
sions  beyond  the  seas,  of  equal  or  greater  annual  value  than  the  said  an- 
nuity, ovir  and  above  any  other  annuity,  and  the  interest  of  any  princi- 
pal  &vm  charged  or  secured  thereon,  of  which  the  grantee  had  notice  at 
the  time  of  the  grant,  whereof  the  grantor  is  seised  in  fee  simple  or  fee 
tail  in  possession,  or  the  fee  simple  whereof  in  possession,  the  grantor  is 
enabled  to  charge  at  the  time  of  the  grant,  or  secured  by  the  actual 
transfer  of  stock  in  any  of  the  public  funds,  the  dividends  whereof  are 
of  equal  or  greater  annual  value  than  the  said  annuity ;  nor  to  any  vo- 
luntary annuity  or  rent-charge  granted  without  regard  to  pecuniary 
consideration  or  moncifs  worth  ;^  nor  to  any  annuity  or  rent-charge  grant- 
ed by  any  body  corporate,  or  under  any  authority  or  trust  created  by 
act  of  parliament. 

This  is  copied  from  the  old  act,  with  the  additions  in  italics ;  the 
additions  require  no  explanation,  and,  I  believe,  meet  all  the  questions 
which  arose  on  the  provision  in  the  repealed  act.  The  provision  in  the 
old  act,  which  excepted  out  of  its  provisions  annuities  not  exceeding 
10/.  was  not  inserted  in  the  new  one.  The  practice  with  professed  mo- 
ney lenders  was  to  split  the  consideration  into  several   parts,  and  make 

(*333) 


3S4  APPENDIX. 

the  man  wanting  the  money  grant  10/.  annuities  to  difleient  persons,  to 
the  amount  agreed  upon.  By  this  plan  they  increased  the  expenses  of 
the  grantor  to  a  considerable  amount,  and  at  the  same  time  avoided  giv- 
ing publicity  to  the  transaction. 

In  considering  the  operation  of  the  new  act,  it  will  be  necessary  for 
the  reader  to  keep  in  view  the  circumstance,  that  it  extends  to  annui- 
ties, although  not  exceeding  10/.,  and  also  embraces  annuities  granted 
for  money's  worth.  As  to  the  latter,  see  James  v.  James,  before  cited. 
In  consequence  of  the  decision  before  referred  to  in  Darwin  v.  Lin- 
coln, the  act  of  the  3  Geo.  IV.  c.  92,  was  passed.  By  that  act,  after 
recitinf  the  second  section  of  the  act  of  the  53d  of  Geo.  3,  and  tnat  the 
form  or  effect  to  which  such  enactment  refers  is  expressed  in  several 
columns,  at  the  head  of  one  of  which  are  the  words  "  Nam.es  of  witness- 
es," and  underneath,  as  applicable  to  indentures  of  lease  and  release,  the 
letters  and  words,  "  E.  F.  of  "  "  G.  H.  of  ,"  and  as 

applicable  to  a  bond  and  warrant  of  attorney   to  confess  judgment,  the 
letters  " -E.  F."  "  G.   H."  without  the  word  "of;"   and  reciting,  that 
the  words   of  enactment  referring  to  such  form   express   only  that  a 
(*)memorial   of  the   names   of  all   the  witnesses   to  every  such  deed, 
bond,  instrument   or  other  assurance  as   therein  mentioned,  should  be 
enrolled  as  directed  by  the  said  Act,  without  providing  that  any  descrip- 
tion of  the  witnesses  should  be  given  in  such  memorial,  except  as  such 
form  is  thereby  referred   to  ;  and  such  form    does  not  provide  that  any 
description   should   be  added  to   such  names  except  by  the  addition  of 
the  word,  "  of"   to  the  letters  "  E.  F."  and   "  G.  H."  as  aforesaid,  as 
applicable  to  indentures  of  lease  and  release  ;  and  reciting,  that  in  con- 
sequence of  such  indistinct  enactment  it   might  be  doubtful  whether  it 
was  the  intention  of  the  Legislature  to  require  any,  or  if  any,  what  de- 
scription to  be  added  to  the  names  of  witnesses  in  the  memorial  of  any 
deed,  instrument  or  assurance,  to  be  enrolled  as  aforesaid  ;  and  reciting 
that  a  very  great  number  of  memorials  of  grants  of  annuities  had  since 
the  passing  of  the  said  act  been  enrolled,  in  which  the  names  of  the  wit- 
nesses to  the  deeds,  instruments  or  assurances  specified  in  such  memori- 
als, had  been  inserted  without  the  addition  of  the  place  of  abode  of  such 
witnesses,  and  it  has  been  inferred  from  the  use  of  the  word  "  of"  after 
such  letters  "  E.  F."  and  after  such  letters  "  G.  H."  as  aforesaid,  that 
it  was  necessary  to  describe  each  of  such  witnesses   in  such   memorial 
as  of  some  place,  and  in  consequence  thereof  some  grants  of  annuities 
made  since  the  passing  of  the  said  act  had  been,  in  proceedings  in  sum- 
mary applications  to  courts  of  justice  which  could   not  be  reviewed  in 
any  superior  court,  deemed   null  and  void,  on   the  ground  that  no  de- 
scription of  the  place  of  abode  of  the  witnesses   to  some  or  one  of  the 
deeds,  instruments  or  assurances  by  which  such  grants  of  annuities  had 
(*334) 


APPENDrx.  385 

been  made,  had  been  inserted  in  tlie  memorials  or  memorial  thereof  en- 
rolled as  directed  by  the  said  act  ;  and  also  reciting,  that  doubts  had 
been  entertained  whether  the  construction  so  put  on  the  said  act  is  the 
true  construction  thereof,  more  especially  as  the  same  is  so  far  penal  as 
renders  deeds,  instruments  and  assurances,  of  which  memorials  had  not 
been  enrolled  in  pursuance  of  the  said  act,  null  and  void  ;  and  the  provi- 
sions in  the  said  act  are  not  so  clear  and  explicit  as  the  same  ought  to 
have  been  under  such  circumstances,  and  the  parties  claiming  under  grants 
of  annuities  might  have  been  thereby  misled  and  induced  to  conceive 
that  it  was  not  necessary,  under  the  provisions  of  the  said  act,  to  insert 
in  the  memorial  of  any  deed,  instrument  or  assurance,  to  be  enrolled 
as  aforesaid,  the  place  or  places  of  abode  of  the  witness  or  witnesses  to 
such  deed,  instrument  or  assurance,  or  any  more  than  the  name  or  names 
of  such  witness  or  witnesses,  there  (*)  being  no  words  in  the  said  act 
expressly  requiring  any  more  to  be  so  inserted,  nor  any  words  from 
which  it  could  be  inferred  that  any  more  was  required  to  be  inserted, 
except  the  word  "  of"  after  the  letters  "  E.  F."  and  "  G.  H."  respec- 
tively, with  reference  to  one  species  of  assurance,  inserted  in  the  form 
of  memorial  before  mentioned,  and  that  it  was  expedient  to  remove  all 
doubts  touching  the  construction  of  the  said  act  with  respect  to  so  much 
of  the  memorials  required  by  the  said  act  to  be  enrolled  as  relates  to 
any  description  of  the  witness  or  witnesses  to  any  deed,  instrument  or 
assurance  ;  it  is  enacted,  that  by  the  said  act  of  the  63d  year  of  the 
reign  of  his  said  Majesty  Geo.  3,  no  further  or  other  description  of 
the  subscribing  witness  or  witnesses  to  any  deed,  bond,  instrument  oi 
other  assurance,  whereby  any  annuity  or  rent-charge  is  or  may  be 
granted,  is  required  in  the  memorial  thereof,  besides  the  names  of  ail 
such  witnesses  ;  and  so  the  said  act  shall  be  deemed,  construed  and 
taken.  .See  St.  John  v.  Champneys,  1  Bingham,  77.  And  by  the 
same  act(.r),  after  reciting  that  doubts  had  also  arisen  whether  under 
the  said  act  of  the  53d  year  of  the  reign  of  his  said  Majesty  Geo.  3, 
the  omission  to  enrol  a  memorial  of  any  of  the  assurances  for  securing 
any  annuity  or  rent-charge  did  not  vitiate  the  whole  transaction,  not- 
withstanding the  enrolment  of  a  memorial  of  another  deed,  bond,  instru- 
ment or  other  assurance  granting  the  same(I) ;  and  that  it  was  also  ex- 
pedient to  remove  such  doubts,  it  was  enacted  and  declared  that  every 
deed,  bond,  instrument  or  other  assurance  granting  any  annuity  or  rent- 
charge,  and  of  which  a  memorial  shall  have  been  or  shall  be  duly  en- 
rolled pursuant  to  the  said  act,   notwithstanding  the  omission  to   enrol 

(x)  Sect.  2. 


(I)   This  is  singular  ;  for   the  former   act  expressly  authorizes  every  secnrily  to  be  can- 
celled. 

vol..    It.  49  (-335) 


386  APPENDIX. 

any  other  de.  -,  ^ou-  ,  '.nstrument  or  assurance  for  securing  such  annuity 
or  rent-charge,  shall  be  valid  and  effectual  according  to  the  intent,  mean- 
in"-  and  true  effect  thereof,  notwithstanding  a  memorial  of  any  other 
deed,  bond,  instrument  or  assurance  for  securing  the  same  annuity, 
shall  not  have  been  duly  enrolled  pursuant  to  the  said  act. 

And  by  the  same  act  it  is  provided (y)  and  enacted,  that  nothing  in 
the  said  act  contained  shall  extend  to  give  any  other  force  or  validity  to 
any  deed,  bond,  instrument  or  other  assurance  of  which  a  memorial 
shall  have  been  duly  enrolled  as  aforesaid,  than  such  deed,  bond,  in- 
strument or  other  assurance  would  have  had  if  any  deed,  bond,  instru- 
ment or  other  assurance  for  securing  (*)the  same  annuity,  of  which  a 
memorial  shall  not  have  been  duly  enrolled,  had  never  been  executed. 

And  by  the  said  act  it  is  also  provided  (z)  and  further  enacted,  that 
the  said  act  shall  not  extend  or  be  construed  to  extend  to  revive  or 
give  effect  to  any  deed,  bond,  instrument  or  other  assurance,  whereby 
any  annuity  or  rent-charge  hath  been  already  granted,  so  far  as  the  same 
hath  been  adjudged,  declared,  treated  or  deemed  void  by  any  judgment, 
decree,  action,  suit  or  proceeding  at  law  or  in  equity,  or  by  any  act  or 
deeds  of  the  parties  thereto,  or  by  any  other  legal  or  equitable  means 
whatsoever  ;  nor  shall  the  said  act  affect  or  prejudice  any  suit  or  pro- 
ceeding at  law  or  in  equity  commenced  on  or  before  the  31st  day  of 
May  1822,  and  now  depending,  upon  the  ground  of  an  alleged  defect 
in  the  memorial  thereof  in  not  describing  the  witnesses  thereto  other- 
wise than  by  his,  her  or  their  name  or  names,  for  avoiding  any  such 
deed,  bond,  instrument  or  other  assurance. 

The  current  of  judgment  is  now  altered,  and  a  fair  and  liberal  con- 
struction is  put  upon  the  acts  in  favor  of  bond  fide  transactions.  See 
Faircloth  v.  Gurney,  9  Bing.  622. 


No.  XIV. 

Coiissmaker  V.  Ssxvell{a)y  Ch.  Ath  May,  1791. 

In  this  cause  it  was  referred  to  Master  Greaves  to  see  if  a  good  thle 
could  be  made  to  the  estate  in  question.  An  abstract  was  delivered. 
It  appeared  by  it,  that  William  Perkins,  an  ancestor  of  the  vendor,  had 
made  a  settlement  of  his  estate  in  the  year  1705  ;  but  neither  the  set- 
tlement itself,  nor  any  copy  or  abstract  of  it,  could  be  produced,  and 
the  contents  of  it  were  totall3punknown.  In  1751  a  fine  was  levied  by 
Mr.  Perkins  and  his  eldest  son ;  and  in  1763  a  recovery  was  suffered, 
in  which  Mr.  Perkins  and  his  second  son  (the  eldest  son  being  then 

(y)  Sect.  3.  (z)  Sect.  4.  (a)    Vide  supra,  \o\.  I,  p.  356. 

(*336) 


APPENDIX.  387 

dead)  joined  in  making  a  tenant  to  the  praecipe,  and  the  second  sou 
was  vouched.  The  estate  was  mortgaged  in  1759,  and  the  title  was 
then  approved  of  by  Mr.  Serjeant  Hill  ;  and  from  the  wording  of  his 
opinion,  it  was  collected,  that  the  settlement  of  1705  was  then  before 
him.  Supposing  the  limitations  in  the  settlement  of  1705  to  have  beea 
to  the  sons  of  that  marriage  successively  in  tail  male,  those  estates-tail» 
and  the  remainders  expectant  upon  them  (if  any)  were  completely 
barred  by  tlie  tine  and  recovery. 

(*)The  counsel  for  the  purchaser  objected  to  the  title,  on  the  ground 
that  the  deed  of  1705  was  not  produced,  and  that  it  might  contain  limi- 
tations which  were  not  barred  by  the  fine  and  recovery  ;  and  might  have 
created  charges  to  which  the  estate  still  continued  subject. 

These  objections  were  laid  before  the  Master  ;  and  the  vendor  not 
acquiescing  in  them,  they  were  argued  before  him.  The  counsel  for 
the  purchaser  avowed  his  client  to  be  an  unwilling  purchaser,  and  stated 
his  objections  with  great  perspicuity  and  ability,  and  required  of  the 
Master,  that  if  he  did  not  think  the  title  such  as  a  court  of  equity  was 
warranted  to  force  on  an  unwilling  purchaser,  he  should  not  report  in  fa- 
vor of  it.  The  original  opinion  of  Mr.  Sergeant  Hill  could  not  be  pro- 
duced, and  the  serjeant  had  not  that  recollection  of  what  was  before  him 
at  the  time  he  gave  the  opinion,  as  enabled  him  to  say  that  he  had  seen 
the  settlement.  Much  stress  was  not,  therefore,  laid  upon  the  opinion. 
On  the  21st  February  1791,  the  Master  made  his  report,  in  which  he 
stated  that  he  had  seen  the  opinions  given  by  Mr.  Sergeant  Hill  and  by 
Mr.  Shadwell,  the  purchaser's  counsel ;  and  that,  considering  the  circum- 
stances of  the  case,  and  the  length  of  the  possession  since  the  recovery, 
he  was  of  opinion  a  good  title  might  be  made.  To  this  report  the  purcha- 
ser excepted,  and  the  exceptions  were  argued  before  the  Chancellor  on 
the  4th  May  1791,  by  Sir  John  Scott,  with  great  earnestness  ;  but  the 
Chancellor  over-ruled  them,  and  the  report  was  confirmed. 


No.  XV. 

Clay  V.  Sharjoe,  Ch.  Mich.  Term,  1802  (e). 

By  indenture,  bearing  date  the  28th  of  November  1798,  and  made 
between  Thomas  Wardell  of  the  first  part,  George  Taylor  and  Ann  his 
wife  of  the  second  part,  E.  Day  of  the  third  part,  and  William  Sharpe 
of  the  fourth  part,  certain  leasehold  estates  were  assigned  unto  the  said 
Edward  Day,  his  executors,  administrators  and  assigns,  subject  to  a  pro- 
viso or  condition  for  redemption,  upon  WardcU's  transfering  into  the  name 

(e)   Fide  swpro,  vol.  1,  p.  358.  (■*337\ 


388  APPENDIX. 

of  Day,  his  executors,  adiiiinistiators  or  assigns,  2,0C0/.  3  per  cent,  con- 
solidated Bank  annuities.  And  it  was  by  the  indenture  agreed,  that  if  de- 
fault should  be  made  contrary  to  the  proviso  or  condition  (*)of  redemp- 
tion ,it  should  be  lawful  for  the  said  defendant,  Edward  Bay,  to  sell  the 
said  leasehold  pren)ises  for  the  best  price  that  could  be  reasonably  gotten 
for  the  same  ;  and  to  reimburse  himself  the  costs,  charges  and  expenses 
relatin"  to  such  sale  ;  and  afterwards  to  re-purchase  the  said  2,000/.  3 
per  cent,  consolidated  Bank  annuities,  or  such  part  thereof  as  should  re- 
main due  or  untransferred  ;  and  the  overplus  of  the  monies  to  arise  by 
the  said  sale,  if  any,  to  pay  to  the  said  Thomas  Wardell,  his  executors, 
administrators  or  assigns.  And  the  said  Thomas  Wardell  did,  by  the 
said  indenture,  covenant,  that  in  case  of  any  sale  pursuant  to  the  power 
aforesaid,  he  the  said  Thomas  Wardell,  his  executors  or  administrators, 
would  join  and  concur  therein,  and  execute  any  assignment  to  the  pur- 
chaser or  purchasers  of  the  said  premises,  with  the  usual  covenants  for 
the  title  thereto  ;  or  do  any  reasonable  act  confirming  such  sale.  But 
that,  nevertheless,  it  should  not  be  necessary  that  the  joining  of  the  said 
Thomas  Wardell  in  any  such  sale  or  conveyance,  should  be  essential  to 
perfect  the  title,  the  same  being  intended  only  for  satisfaction  of  such 
purchaser  or  purchasers. 

Default  was  made  in  transferring  the  stock,  and  Day,  who  was  a 
trustee,  by  Sharpe's  directions,  put  up  the  premises  for  sale  by  public 
auction,  at  which  sale  the  plaintiff  became  the  purchaser. 

The  plaintif}"'s  attorney  prepared  a  draft  of  the  assignment,  in  which 
he  made  Day  the  mortgagee,  Sharpe  the  cestui  que  trust,  and  Wardell 
the  mortgagor,  parties  ;  but  Wardell  the  mortgagor  having  refused  to 
execute  the  assignment,  the  plaintiff  filed  his  bill  against  Day,  Sharpe 
and  Wardell,  for  a  specific  performance  of  the  contract  for  sale. 

To  this  bill  the  defendants  put  in  their  answers,  and  Wardell  stated 
that  he  resisted  the  sale,  as  having  been  made  without  his  consent,  and 
at  an  undervalue  ;  but  before  any  proceedings  were  had,  Wardell  be- 
came a  bankrupt,  and  in  consequence  thereof  a  supplemental  bill  was 
filed  against  his  assignees. 

The  cause  coming  on  to  be  heard  the  15th  of  November  1802,  the 
Chancellor  decreed  that  the  plaintiff's  bills  should  be  dismissed  as 
against  the  defendants,  Thomas  Wardell,  and  his  assignees,  ivitli  costs, 
to  be  taxed  by  the  Master.  And  it  was  also  decreed,  that  the  agree- 
ment entered  into  by  the  plaintiff  with  the  defendants  William  Sharpe 
and  Edward  Day,  for  the  purchase  of  the  premises  in  question,  should 
be  carried  into  execution.  And  that  upon  the  plaintiff  paying  unto  the 
said  defendants  (*)William  Sharpe  and  Edward  Day,  the  residue  of  the 
purchase-money  for  the  premises,  the  said  defendants  should  execute 
an  assignment  of  the  lease  of  the  said  premises  to  the  plaintiff,  or  as  he 

{*33S)    (*339; 


APPENDIX.  389 


should  appoint.  And  that  the  defendants  Sharpe  and  Day  should  pay 
to  the  plaintiff'  his  costs  of  the  said  suit,  so  far  as  the  bills  were  not  dis- 
missed, as  thereinbefore  directed,  to  be  taxed  by  the  Master,  in  case 
the  parties  differed  about  the  same. 


No.  XVI. 
Belch  V.  Hai-vey  (f),  Cli.  Mich.  9  Geo.  II. 

This  cause  was  very  long  and  intricate  ;  but  the  chief  question  was, 
what  length  of  time  would   bar   an  equity  of  redemption  ?     And   as  to 
that  point,  Talbot,  Lord   Chancellor,  said   that  courts  of  equity  had    of 
late  years  generally  adhered  to  the  time  laid  down  in  the  statute  of  limi- 
tations with  regard  to  ejectments,  and  that  it  was  certainly  right  to  have 
fixed  rules  in  equity  as  well  as  law,  that  people   might  know  how  far 
their  property  extended,  and  where  it  was  bound  ;  and   that  he  did   not 
know  any  more   reasonable   rule   in  general  than  what  the  Legislature 
had  prescribed  for  such  possessory  actions.     The  person  claiming  the 
equity    of  redemption   offered    some  proof  out    of   the    Ecclesiastical 
Court  to   show  she  was  an  infant  at  the  time  of  her  marriage,  which 
was  not  allowed  to  be  read,  and  other  proof  that  the  marriage  continued 
for  many  years,  both  which,   taken  together,  would  excuse  the  non-re- 
demption for  a  long  time  ;  but  my  Lord  Chancellor  gave  her  liberty  to 
file  an  interrogatory  to  prove  her  infancy  at  the  time  of  her  marriage,  if 
she  could  ;  and   said,  he  would  then  consider  whether  equity  had   also 
followed  the  statute  of  limitations  in  allowing  only  ten  years  for  infants 
and /ernes  coreW  to  commence  their  suits  after  the  imperfections  removed, 
for  he  did  not  remember  the  Court  had  pursued  that  part  of  the  statute  ; 
and  Mr.  Verney,  king's  counsel,  cited  the  case  of  Brewer  and  Baker- 
straiv,  which  he  believed  to  be  about  five  years  ago,  where  the  father 
mortgaged  some  chambers  in  Gray's  Inn,  and   died,  leaving  his  son  an 
infant,  during  which  time  many  years  were  saved  ;  and  yet  nineteen 
years  after  he  was  come  of  age  he  was  permitted   to  redeem.     But  to 
this  Mr.  Fazakerly  answered,  there  was  as  much  reason  for  observing  it 
in  the  one  (*)case  as  the  other ;  and  that,  in  the  present  case,  thirteen 
years  had  passed  between  the  death  of  the  husband  and  the  bill  filed  for 
a  redemption.     This  was  on  a  supposition  she  could  prove   her  infancy 
at  the  time  of  her  marriage  ;  for  if  she  was  then  of  full  ago,  my  Lord 
Chancellor  said,  the  time  would  attach  and  run  out  against  her,  notwith- 
standing the  subsequent  marriage,  and  then  she  would   be  put  ofl*  from 

(/)   Vide  supra,  vol.  1.  p.  395. 

(*340) 


390  APPENDIX. 

all  possibility  of  relief,  for  there  would  be  near  forty  years  possession 
against  her  unaccounted  for.  By  statute  21  Jac.  1.  c.  16,  persons  hav- 
ing any  right  or  title  of  entry  must  enter  within  twenty  years  after  titles 
accrued  ;  but  the  title  of  infants, /emes  covert,  &c.  are  saved,  so  as  they 
commence  their  suits  within  ten  years  after  the  imperfection  removed? 

This  cause  coming  on  again  the  same  term,  was  ended  by  consent  of 
the  parties  :  but  Lord  Chancellor  Talbot  spoke,  however,  in  this  case 
to  this  effect :  A  peaceable  and  quiet  possession  for  a  long  time  weighs 
greatly  whh  me  in  all  cases.  The  foundation  which  the  Court  goes  on 
in  cases  of  the  like  nature  with  the  present,  is  not  any  presumption, 
that  after  a  long  space  of  time  the  party  has  deserted  his  right ;  but  to 
quiet  and  secure  men's  possession,  which  is  very  reasonable  to  be  done 
after  twenty  years  time,  without  some  very  particular  circumstances  : 
and  for  this  cause  a  court  of  equity  has  generally  acted  in  conformity 
to  the  statute  of  limitations.  Whether  the  present  plaintiff  was  an  in- 
fant at  the  time  of  her  marriage  is  to  me  very  doubtful ;  but  taking  it 
she  was  then  an  infant,  as  the  Court  has  not  in  general  thought  proper 
to  exceed  twenty  years,  where  there  was  no  disability,  in  imitation  of 
the  first  clauses  of  the  statute,  so  if  I  had  been  forced  to  have  made  a 
decree  in  the  present  case,  I  should  have  been  of  opinion,  that  after  the 
disability  removed,  the  time  fixed  for  prosecuting  in  the  proviso,  which 
is  ten  years,  should  also  have  been  observed  :  for  the  proviso  contain- 
ing an  exception  of  several  cases  out  of  the  purview  of  the  statute,  if 
the  parties  at  law  should  avail  themselves  by  the  proviso,  they  must 
take  it  under  such  restrictions  as  the  Legislature  hath  annexed  to  it, 
and  that  is,  to  sue  within  ten  years  after  the  impedinient  ceases,  ^^hy 
should  not  the  same  rule  govern  in  equity  1  I  think  there  is  great  rea- 
son that  it  should.  The  persons  who  are  the  subject  of  the  proviso  are 
not  disabled  from  suing,  they  are  only  excused  from  the  necessity  of 
doing  it  during  the  continuance  of  a  legal  impediment ;  therefore  when 
that  difficulty  is  removed,  and  nobody  can  say  (*)how  long  it  may  last, 
the  time  allowed  after  such  impediment  removed  for  their  further  pro- 
ceedings should  be  shortened.  If  they  would  excuse  a  neglect  under 
the  first  part  of  the  proviso,  should  they  not  do  it  upon  the  terms  such 
excuse  is  given  ?  If  I  had  given  my  opinion  on  this  case,  I  should  have 
dismissed  the  bill. 

(*341) 


APPENDIX.  391 


No.  XVII. 


The  King  against  John  Smith,  Esq. {a),  Serjeants''  Inn  Hall,  JMarch  2, 
1804. — The  judgment  of  the  Court,  as  delivered  bij  the  Lord  Chief 
Baron. 

This  case  of  the  King  against  Smith  has  occupied  a  great  deal  of  the 
attention  of  the  Court,  and  that  in  a  great  degree  owing  to  the  prodi- 
giously extensive  consequences  that  it  may  have  according  as  it  is  de- 
cided in  the  one  way  or  the  other.  We  were  therefore  anxious  to 
search  in  order  to  find  out  what  materials  existed  on  the  subject.  After 
all  the  pains  we  could  take,  we  find  them  to  be  but  few.  We  have 
found  no  decision  or  authority  similar  in  its  terms  to  the  present  case  ; 
and  the  consequence  of  that  is,  where  we  can  find  principles  laid 
down,  we  must  be  governed  by  them  in  the  absence  of  every  direct 
precedent  on  the  subject.  The  magnitude  of  the  question  is  very  con- 
siderable, because,  on  the  one  hand,  from  some  instances  of  persons  in 
the  service  of  government,  and  who  have  been  intrusted  with  the  pub- 
lic money,  I  have  experience  enough  to  say,  that  the  ingenuity  exer- 
cised by  them  may  be  such  as  not  to  make  it  very  difficult  to  avail 
themselves  of  their  situation,  and  to  render  it  no  easy  matter  to  make 
them  responsible  ;  on  the  other  hand,  it  puts  those  who  make  purcha- 
ses from  persons  in  such  a  situation  in  a  very  unpleasant  and  precarious 
situation,  if  the  lands  or  goods  so  purchased  may  be  extended.  In  this 
view  the  question  is  of  very  great  importance.  The  stake  in  the  pre- 
sent instance  is  next  to  nothing ;  but  the  decision  will  be  such  as  will 
govern  multitudes  of  cases  that  exist,  and  I  believe  many  to  exist  of  the 
same  sort. 

This  case  arises  on  an  extent  that  was  issued  against  John  Montre- 
sor,  Esq.  late  engineer  in  the  service  of  government,  in  North  America, 
who  owed  vast  sums  to  government.  It  was  found  that  a  great  ba- 
lance remained  in  his  hands  which  he  had  not  accounted  for.  The  ex- 
tent issued  to  the  sheriff  of  Kent — that  you  diligently  inquire  what  lands 
and  tenements,  and  of  (*)what  yearly  value,  the  said  John  Montresor 
had  in  your  bailiwick  on  the  28th  of  September,  in  the  eighteenth  year 
of  our  reign,  when  the  said  John  Montresor  first  became  indebted  to  us 
in  the  said  money,  or  at  any  time  after  ;   in  the  cominon  language. 

An  inquisition  is  returned  of  course,  and  in  the  inquisition  it  is  stated 
that  the  sheriff  seised,  &c. 

Without  going  minutely  into  all  the  circumstances  of  this  case,  I  be- 
lieve I  can  state  from  memory,  the  leading  facts  upon  which  the  ques- 
tion depends.     The  property  now  in  question,  which  consists  of  a  small 

(a)    Vide  supra,  vol.  1.  p.  511,  512.  n.  514,  515. 

(*342) 


392  APPENDIX. 

messuage,  and  of  some  closes  of  land,  originally  belonged  to  a  Mr. 
Thompson.  He  being  seised  of  this  property  demised  it  for  the  full 
term  of  five  hundred  years  ;  the  residue  of  this  term  was  afterwards  as- 
signed to  Ann  Carter  ;  and  last  of  all  to  John  Smith,  the  present  de- 
fendant, in  trust.  And  in  ITQ.^,  Mr.  Smith  purchased  the  reversion  of 
General  Montresor,  he  being  then  seised  of  this  property  in  his  demesne 
as  of  fee  subject  to  this  term  of  five  hundred  years  ;  and  at  the  time  of 
the  purchase  Mr.  Smith  had  no  notice  of  any  debt  that  had  been  incur- 
red by  John  Montresor  to  the  King. 

This  is  the  short  state  of  the  case,  and  I  believe  it  is  all  that  is  neces- 
sary :  and  the  question  then  is,  whether  this  outstanding  term,  which  is 
held  in  trust  for  Mr.  Smith,  does  or  does  not  protect  him  against  the 
claim  of  the  Crown  ? 

The  argument  on  behalf  of  Mr.  Smith  turned  almost  entirely  on  the 
statute  of  uses  in  courts  of  equity,  and  besides  that  on  the  doctrine  laid 
down  in  Willoughby  against  Willoughby,  which  has  never  been  shaken, 
and  which  I  hope  never  will.  I  take  that  now  to  be  a  leading  decision, 
never  to  be  departed  from  in  cases  between  subject  and  subject. 

In  answer  to  this  case,  made  on  the  part  of  the  defendant,  irrefragable 
as  between  subject  and  subject,  in  answer  to  this  case,  it  was  argued, 
that  the  case  of  the  Crown  is  essentially  different  from  that  of  the  sub- 
ject ;  and  as  far  as  we  are  furnished  with  light  on  this  subject,  it  does 
seem  that  the  case  of  the  Crown  is  essentially  different. 

In  the  first  place,  we  find  from  a  variety  of  authorities,  that  lands  or 
goods  in  the  hands  of  debtors  or  accountants  to  the  Crown,  or  in  the 
hands  of  those  who  are  debtors  to  the  debtors  of  the  Crown,  or  which  are 
held  in  trust  for  them,  or  to  their  use,  are  most  clearly  the  subject  of  an 
extent. 

Further,  we  find  in  PI.  Com.  321,  in  the  great  case  of  the  mines  in 
the  hands  of  the  Crown,  there  was  a  great  number  of  (*)the  King's  debt- 
ors brought  into  the  Court  of  Exchequer,  and  there  the  Court  held, 
that  lands  which  had  belonged  to  the  king's  debtors,  which  had  been 
their  property  after  they  had  so  become  debtors  to  the  Crown,  were 
subject  to  the  seizure  of  the  king,  into  whatever  hands  they  afterwards 
came,  whether  by  descent,  purchase  or  otherwise.  Among  other  cases 
there  cited,  is  that  of  Sir  Wm.  Seyntloo,  who  married  the  widow  of  Sir 
Wm.  Cavendish,  who  was  treasurer  of  the  household.  Sir  Wm.  Seynt- 
loo and  his  lady  were  returned  terre-tenants,  in  right  of  the  wife,  of 
certain  land  which  was  Sir  William  Cavendish's,  and  were  called  into 
the  Court  of  Exchequer,  and  made  accountable  for  the  arrears  due  to 
the  queen  for  Sir  William's  office.  See  Dyer,  224  and  226.  It  ap- 
pears from  the  case,  that  after  Sir  William  Cavendish  became  indebted 
to  the  Crown,  he  purchased  divers  lands,  and  afterwards  aliened  them, 

(*343) 


APPENDIX.  393 

and  took  bick  an  estate  therein  lo  himself  and  his  wife,  and  afterwards 
died  without  rendering  any  account,  and  the  terre-tenants  (as  I  have 
ju>-t  slated)  of  the  land  were  charged  to  answer  to  Queen  Elizabeth  for 
the  arrears.  Tlic^e  lands  might  have  been  seized  in  the  hands  of  Sir 
William,  and  for  the  same  reason  they  nvght  be  seized  in  the  hands  of 
every  one  who  came  under  him. 

In  2  Roll.  Ab.  156,  the  difibrence  is  stated  between  the  effect  of  a 
sale  of  land  by  a  debtor  to  the  Crown,  when  that  sale  took  place  before 
he  became  a  debtor,  and  a  sale  afterwards.  In  Dyer,  160,  there  is  the 
case  of  one  Thomas  Favell,  who  was  a  collector  of  the  fifteenth  and 
tenth.  He  was  indebted  to  the  Crown,  and  being  seised  of  certain 
lands  in  fee  simple,  and  having  divers  goods  and  chattels,  die  intromis- 
sionis  de  coUectione  el  levatione,  of  the  fifteenth  and  tenth  aforesaid, 
in  extremity  of  illness  aliened  his  tenements,  goods  and  chattels,  to 
divers  persons,  and  died  without  heir  or  executor,  and  process  was  is- 
sued against  the  terre-tenants,  and  possessors  of  the  goods  and  chattels, 
to  account  for  the  collection  aforesaid,  and  to  answer  and  satisfy  the 
king  thereof,  &c.  ;  and  this  by  the  advice  of  the  Chancellor  of  Eng- 
land, and  the  Chief  Justice  of  England,  and  the  other  Judges  of  either 
bench.  It  is  therefore  clear,  beyond  all  doubt,  that  the  land  itself  may 
be  extended,  into  whatever  hands  that  land  mav  have  been  aliened. 

The  next  step  which  we  find  in  a  matter  of  this  kind,  is  the  doctrine 
which  is  laid  down  in  Sir  Edward  Coke's  cnse,  and  which  is  mentioned 
afterwards  by  Lord  Hale  in  deciding  another  case,  which  I  shall  state 
by  and  by.  This  case  of  Sir  Edward  (*)Coke  being  of  great  conse- 
quence, the  Master  of  the  Court  of  AVards  was  assisted  by  four  of  the 
Judges  in  the  hearing  and  debating  of  it ;  and  after  many  arguments  at 
the  bar,  the  said  four  Judges  argued  the  same  in  court,  viz.  Dodderidge, 
one  of  the  Justices  of  the  King's  Bench  ;  Taufield,  Lord  Chief  Barou 
of  the  Exchequer;  Hobart,  Lord  Chief  Justice  of  the  Court  of  Com- 
mon Pleas  ;  and  Ley,  Lord  Chief  Justice  of  his  Majesty's  Court  of 
King's  Bench- 
First  of  all,  I  would  draw  your  attention  to  this  point,  that  this  is  an 
infinhely  stronger  case  than  a*iy  of  those  I  have  stated.  In  general, 
the  debtor  to  the  Crown  was  at  one  time  in  possession  of  the  laud  him- 
self; but  in  this  case  the  king's  account  never  had  the  land  in  him,  the 
land  and  debt  never  centered  in  the  accountant  to  the  Crown. 

The  case  in  effect  was  this  :  — Qtieen  Elizabeth,  by  her  letters  patent, 
did  grant  to  Sir  Christopher  Hatton  the  ofncc  of  remembrancer  and 
collector  of  the  first  fruits,  for  his  life,  habendum  to  him  after  the  death 
or  surrender  of  one  Godfrey,  who  held  the  said  office,  then  in  posses- 
sion :  Sir  Christopher  Hatton  being  thus  estatcd  in  the  said  office  in 
reversion,  and  being  soisrd  in  tVe  siinp'.c  of  divers  manors,  lands  and 
voj..  ,i.  50  (*344) 


394  APPENDIX. 

tenements,  did  covenant  to  stand  seised  of  his  lands,  &c.  unto  the 
use  of  himself  for  life,  and  afterwards  to  the  use  of  J.  Hatton,  his 
son,  in  tail,  and  so  to  his  other  sons  in  tail,  with  remainder  to  the 
rio^ht  heirs  of  J.  Hatton  in  fee,  with  proviso  of  revocation,  at  his  plea- 
sure, during  his  life.  Godfrey,  the  officer  in  possession,  died,  and  Sir 
Christopher  Hatton  became  officer,  and  was  possessed  of  the  office,  and 
afterwards  he  became  indebted  to  the  queen  by  reason  of  the  said  of- 
fice ;  and  the  question  in  this  great  cause  was,  whether  the  manors  and 
lands  which  were  so  conveyed  and  settled  by  Sir  Christopher  Hatton, 
might  be  extended  for  the  said  debt  due  to  the  queen,  by  reason  of  the 
proviso  and  revocation  in  the  said  conveyance  of  assurance  of  the  said 
manors  and  lands.  The  debt  due  to  the  queen  was  assigned  over,  and 
the  lands  were  extended,  and  the  extent  came  to  Sir  Edward  Coke; 
and  the  heir  of  John  Hatton  sued  in  the  Court  of  Wards  to  make  void 
the  extent ;  and  it  was  agreed  by  the  said  four  Justices,  and  so  it  was 
afterwards  decreed  by  Cranfield,  Master  of  the  Court  of  Wards,  and 
the  whole  Court,  that  the  said  manors  and  lands  were  liable  to  the  said 
extent 

The  Judges  on  that  occasion  cite  a  great  number  of  cases,  and  some 
of  them  go  a  great  deal  farther  than  1  could  have  well  (*) expected. 
I  shall  just  mention  two  or  three  of  them,  and  it  will  be  unnecessary  to 
state  more.  One  of  the  cases  there  cited  is,  that  of  fValter  de  Cliirton^ 
customer,  who  was  indebted  to  the  king  18,000/.  for  the  customs, 
and  purchased  lands  with  the  king's  money,  and  caused  the  feoflbr  of  the 
lands  to  enfeoff  certain  of  his  friends,  with  an  intent  to  defraud  and  de- 
ceive the  king  ;  and  notwithstanding  he  himself  took  the  profits  of  the 
land  to  his  own  use,  and  those  lands  upon  an  inquisition  were  found, 
and  the  value  of  them,  and  returned  into  the  Exchequer,  and  there,  by 
judgment  given  by  the  Court,  the  lands  were  seized  into  the  king's 
hands,  to  remain  there  till  he  was  satisfied  the  debt  due  to  him  ;  and  yet 
the  estate  was  never  in  him  ;  but  because  he  had  a  power  (to  wit),  by 
subpoena  in  chancery,  to  compel  his  friends  to  settle  the  estate  of  the 
lands  upon  him,  therefore  they  were  chargeable  to  the  debt.  See  Dyer, 
160.  Walter  de  Chirton,  in  that  case?  never  was  seised  of  the  said 
lands  ;  Chirton  had  no  remedy  in  law  to  have  the  lands,  but  his  remedy 
was  only  in  a  court  of  equity. 

Another  case  is  that  of  Philip  Butler,  w  ho  was  sheriff  of  a  county  ;  and 
being  indebted  to  the  king,  his  feoffees  were  chargeable  to  the  kii>g*s 
debt  by  force  of  the  word  habuit,  tor  liabnil  the  lands  in  his  power.  In 
Morgan's  case,  it  was  adjudged,  that  lands  purchased  in  the  names  of 
his  friends  to  his  use,  were  extendable  for  a  debt  due  by  him  to  the  king. 
There  are  several  other  cases  cited  in  Sir  Edw.  Coke's  case,  and 
which  are  also  mentioned  by  Eord  Hale  in  the  case  to  which  I  have  nl- 
(*346} 


APPENDIX.  395 

ready  alluded.  In  a  great  many  of  these  cases,  the  lands  that  were 
seized  for  the  payment  of  debts  due  to  the  Crown  had  been  held  in  trust 
for  the  king's  debtors  ;  and  it  was  no  objection  that  the  legal  estate  was 
not  in  them.  The  ground  of  decision  there  was,  that  they,  by  an  act  of 
their  own,  might  at  any  time  reduce  it  into  possession  ;  they  had  it  in 
their  power,  viz.  by  a  subpoena  in  chancery,  &c.  to  compel  their  friends 
to  settle  the  estate  of  the  lands  upon  them,  snd  therefore  they  were  made 
chargeable  to  the  debt. 

This  being  an  outstanding  term  held  in  trust,  it  is  analogous  to  all 
the  cases  of  uses  and  trusts.  It  was  held  there  to  be  no  objection,  that 
the  legal  estate  was  not  in  him,  because  it  was  in  his  power,  by  an  act 
of  his  own,  to  reduce  it  into  possession. 

But  the  case  that  comes  nearest  to  the  present  is  that  of  the  Attorney- 
general  against  Sir  George  Sands. 

Upon  an  information  exhibited  here,  and  proceedings  upon  (*)it,  a  case 
was  made  and  stated,  which  was  to  this  efi'ect,  viz.  Sir  R.  Freeman  pur- 
chased lands  for  the  term  of  ninety-nine  years,  in  his  own  name,  and 
afterwards  purchased  the  inheritance  of  the  same  lands  in  trust,  and  then 
by  his  will  disposed  of  these  lands  to  the  sons  of  Sir  George  Sands,  his 
grand-children,  born,  or  which  should  be  born  in  his  life-time,  and  direct- 
ed conveyances  to  be  made  accordingly  by  his  trustees,  and  died.  At 
that  time  Sir  George  Sands  had  two  sons.  Freeman  and  George,  and 
Freeman  died  ;  and  after  the  death  of  Sir  Ralph,  Sir  George  had  anoth- 
er son.  Freeman,  who  lulled  his  brother  George,  for  which  he  was  attaint- 
ed and  executed,  and  no  conveyances  were  made  by  the  trustees,  pur- 
suant to  Sir  Ralph  Freeman's  will ;  and  the  questions  hereupon  were 
two  :  1st,  Whether,  as  this  case  is,  the  term  for  years  was  forfeited? 
2dly,  Whether  or  no  the  inheritance  in  trust  was  forfeited  ? 

The  result  in  this  case  was^  that,  inasmuch  as  there  did  not  appear  to 
be  a  tenure,  there  could  be  no  forfeiture  for  the  felony  ;  because  to  a 
forfeiture  for  felony,  and  to  an  escheat,  a  tenure  is  requisite,  and  there- 
fore judgment  was  afterwards  given  quod  dejhuhns  eat  hide  sine  die. 

This  case  of  Sir  George  Sands  is  reported  in  Hardres,  488,  and  also 
in  Freeman.  I  mention  this  case  with  greater  confidence,  because, 
though  Lord  Mansfield,  in  the  case  of  Burgess  against  Wheate,  1 
Blackst.  Rep.  123,  observes,  in  delivering  his  judgment,  that  it  was  a 
family  business,  and  that  the  circumstances  of  Sir  Geo.  Sands'  case 
were  compassionate  ;  yet  I  have  the  authority  of  Lord  Keeper  Henley 
for  saying  it  was  decided  on  great  principles  of  law. — Haying  this  au- 
thority with  me  at  this  great  distance  of  time,  I  conceive  it  gives  it  the 
description  I  have  now  mentioned. 

Hale,  Chief  Baron,  says,  there  is  no  question  concerning  the  forfeit- 

(*346) 


396  APPENDIX. 

ure  of  the  fee  simple  in  trust,  for  that  must  arise  by  escheat,  and  there 
can  be  no  escheat,  but  pro  defcclu  imentis.  But  here  is  a  tenant  in  esse. 
If  the  offence  committed  had  been  treason,  then  there  might  have 
been  a  question,  whether  the  inheritance  in  this  case  should  be  for- 
feited, in  respect  that  the  rent  and  tenure  have  a  continuance. 
But  vk'hether  Sir  George  Sands  shall  hold  the  land  discharged  of 
the  lease,  or  that  the  king  shall  have  the  term,  is  the  sole  doubt. 
The  king  does  not  gain  an  interest  in  a  trust  by  forfeiture,  as  he  does 
in  debt ;  for  there  the  interest  of  the  bond  passes  to  the  king,  and 
process  lies  to  execute  it  in  the  king's  own  name.  And  it  is  question- 
able, (*)\vhether  the  king  can  have  this  in  point  of  prerogative,  in  case 
of  felony ;  though  perhaps  more  might  be  said,  if  the  case  had  been 
treason.  It  is  the  intention  of  the  party  that  creates  and  governs  uses 
and  trusts  ;  and  therefore  a  lease  shall  be  deemed  to  attend  the  inheri- 
tance, if  it  appears  the  parties  intended  it  should  do  so,  as  here  it  does  ; 
and  then  it  is  no  more  than  a  shadow,  an  accessary  to  it,  for  otherwise 
it  would  not  be  attendant  on  it.  And  then  it  cannot,  in  this  case,  go  to 
the  felon,  but  to  the  admistrator  of  George,  the  son.  And  here  they  are 
consolidated  by  the  intention  of  the  will,  which  directs  that  the  trustees 
shall  make  conveyances  accordingly.  Nor  is  it  kept  on  foot,  but  only 
to  avoid  mesne  incumbrances,  which  might  affect  the  inheritance.  And 
this  appears  to  have  been  the  intention  of  the  parties,  when  the  fee  was 
purchased,  and  therefore  the  lease  ought  to  go  with  the  fee  ;  and  in  the 
cases  of  leases  for  years  in  trust,  that  have  been  forfeited,  fraud  was  the 
ground  of  it  in  the  cases  that  have  been  cited. 

Lord  Bale  says  on  another  occasion,  (^for  this  case  was  twice  spoken 
to  by  the  Court,)  I  agree,  that  in  the  case  of  the  king's  debtor,  lands  in 
trust  for  him  in  fee  simple  are  liable  to  the  king's  debt  by  the  common 
law,  per  curstfm  scaccarii,  which  makes  the  law  in  such  cases ;  and  this 
appears  by  precedents  temjy.  Henry  YI.  ;  and  before  4  Henry  VII.  a 
trust  or  use  was  liable  to  a  statute  ;  and  that  is  the  reason  of  Chirton's 
case  in  50  Ass.  And  it  was  held,  in  Sir  Edward  Coke's  case,  in 
Curia  Wardorum,  that  if  the  king's  debtors  have  a  power  of  revocation, 
that  makes  them  liable  to  the  king's  debt ;  and  that  was  the  reason  of 
Babington's  case,  in  Curia  Wardortim,  in  30  Car.  ;  and  of  Head's  case, 
in  Pasch.  4  Jac.  where  lands  in  trust  for  a  recusant  were  subjected 
to  the  debt  of  20/.  per  mensem:  so,  in  41  Eliz.,  Babington's  case,  a 
trust  liable  to  a  debt  imprest,  because  cestui  que  trust  has  a  profit  by  it, 
but  that  is  a.  special  case,  and  grounded  on  a  special  course  in  the  Ex- 
chequer. He  proceeds  to  state  many  other  cases,  which  I  think  it 
unnecesary  to  mention. 

If  you  take  the  converse  of  this  case,  I  think  it  will  make  it  still  more 

(*347) 


APPENDIX.  397 

clear.  The  reason  why  the  term  was  not  lurfeited,  was,  because  the 
inheritance  thereof  was  not  forfeited  ;  but  if  the  iniieritance  had  been 
forfeited,  th%term  must  have  been  forfeited.  In  deciding  according  to 
the  course  of  the  common  hiw,  I  therefore  think  it  clear  that  an  out- 
standing term  cannot  defeat  the  king's  process  by  extent.  In  courts  of 
equity,  it  has  been  said  that  a  purchaser  without  notice  is  a  person  fa- 
vored by  (*)that  Court.  Perhaps  it  may  be  a  sufficient  answer  to  say, 
that  in  the  present  instance  we  are  not  in  a  court  of  equity.  The  ques- 
tion is.  What  ought  to  be  our  decision  according  to  the  common  law  ? 
This  question  could  not  be  decided  in  a  court  of  equity  :  they  could  not 
sue  for  a  decree.  When  a  court  of  equity  is  resorted  to,  and  this  is  the 
situation  of  the  parties,  the  Court  does  nothing  but  stand  neuter  between 
such  parties,  and  leaves  them  to  make  the  most  of  it. 

Now,  therefore,  Lihink,  on  the  whole,  in  the  first  place,  the  land  is 
chargeable  that  has  been  in  the  hands  of  the  king's  debtors;  and  from 
the  cases  that  have  been  decided,  it  is  sufficiently  clear  that  the  term  is ; 
it  is  the  whole  interest  in  the  land,  whether  it  be  divided  or  not:  and  so 
likewise  in  uses  and  trusts  ;  and  from  what  is  said  by  Lord  Hale,  I  in- 
fer the  same  doctrine  is  applicable  to  the  actual  case  now  before  us. 

It  was  hinted,  that  the  33  Hen.  VIII  c.  39,  sect.  50,  53,  and  74,  puts 
the  king's  debts  on  the  same  footing  as  a  statute  staph  ;  but  we  find  the 
same  difficulty  again  recurs,  for  the  33d  of  Hen.  VIII.  does  not  alter 
the  subject  out  of  which  the  thing  is  to  be  paid.  If  I  suppose,  in 
the  present  instance,  they  are  put  on  the  same  footing  with  statutes 
staple,  the  question  would  return  ;  supposing  the  king  has  a  debt  upon 
bond,  which  is  to  be  treated  as  a  statute  staple,  I  do  not  find  the  act 
meddles  with  the  subject  out  of  which  he  is  to  compel  the  payment 
of  his  debt,  but  the  act  relates  singly  to  the  mode  by  which  he  is  to  do 
it ;  and  if  the  king  were  to  put  it  on  the  footing  of  a  statute  staple,  it 
would  deprive  him  of  no  remedy  which  the  common  law  gave  him. 
The  subject  is  not  at  all  touched  by  the  statute,  but  merely  the  manner 
in  which  he  is  to  proceed,  which  perhaps  gives  the  subject  rather  more 
advantages  than  he  had  before,  though  I  do  not  see  very  clearly  in  what 
respect  the  situation  of  the  king's  accountant  is  altered. 

Now  that  being  so,  it  should  seem  to  be  the  result  of  what  one  rinds  in 
the  books,  that  of  the  king's  common-law  remedy  it  is  impossible  to 
doubt  ;  and  that  remedy  is  given  in  every  case  where  the  party  who 
is  indebted  to  the  Crown  has  a  present  beneficial  interest,  as  well  as  a 
reversion  :  both  of  these  are  considered  as  chargeable  fi)r  the  debt  of 
the  Crown  ;  the  lands  of  the  king's  debtor  may  be  extended  by  the 
Crown,  in  whatever  hands  they  may  be  found,  and  therefore,  upon  the 
whole,  the  judgment  of  the  court  in  this  case  must  be  for  the  Crown. 

Judgment  for  the  King. 
(*348; 


398  APPENDIX. 

(*)No.  XVIII. 

The  Allorneij-General   v.    Lockleij    and  others[h).       Chalt.    JSIich.    9 

Geo.  11. 

This  was  an  information  brought  to  secure  a  charity,  and  the  case 
was  thus  :  John  Radford,  and  Anne  his  wife,  were  seised  in  fee,  and 
conveyed  the  premises  by  fine  and  deeds,  declaring  the  uses  thereof,  to 
their  trustees  and  their  heirs,  to  the  use  of  them  and  their  heirs,  in  trust 
for  John  Radford  and  his  wife,  and  the  survivor  of  them,  and  the  heirs 
of  the  survivor,  with  power  for  the  wife,  in  case  the  husband  survived 
her,  to  charge  the  estate  with  400/.  The  wife  died  first,  and  executed 
her  power  for  charitable  uses  ;  John  enjoyed  the  estate  during  his  life  ; 
and  by  will,  dated  25th  Jan.  1723,  he  devised  the  premises  in  fee  to  Tu- 
der  Lockley.  •  Now  this  estate  was  to  be  sold  for  discharging  the  charity 
and  payment  of  mortgages  made  by  Tuder  Lockley  :  and  the  question 
was,  whether  the  sale  should  be  subject  to  the  dower  of  Tuder  Lockley's 
wife,  in  case  she  survived  her  husband.  It  was  argued  by  JVoe/  in  favor 
of  dower,  and  by  Verney  against  it  ;  and  the  following  cases  were  cited  : 
Preced.  Cane.  241,  250  ;  Banks  and  StUton  at  the  Rolls,  March  1733  ; 
Preced.  Cane.  336;  Chan.  Rep.  369;  Show.  Ill;  Preced.  Cane. 
65  ;  Cro.  Car.  901  ;  Ambrose  and  Ambrose,  determined  in  the  year  1717, 
in  the  House  of  Lords(I). 

Talbot,  Lord  Chancellor. — This  is  a  considerable  point,  and  should 
be  settled  some  way  or  other  ;  in  the  first  place  with  regard  to  the  wife, 
her  demand  is  properly  a  legal  one,  and  it  has  been  hinted  at,  as  if  the 
legal  estate  was  executed  in  Mr.  Tuder  Lockley ;  but  there  is  no  foun- 
dation for  that,  as  the  estate  is  limited  to  trustees  and  their  heirs  ;  there- 
fore it  is  a  legal  estate  absolutely  executed  in  the  trustees,  for  there  can- 
not be  a  use  limited  on  a  use.  Then  the  question  will  be,  whether  Tu- 
der Lockley's  (*)wife  is  entitled  to  dower  of  an  equitable  estate  of  in- 
heritance vested  in  her  husband  ;  for  at  present  the  husband  is  living, 
and  if  the  wife  died  before  him,  then  this  question  never  can  arise.  As 
dower  is  a  legal  demand,  so  clearly,  with  regard  to  a  use,  a  wife  was 
not  dowable  of  it  before  the  stat.  Hen.  VIII.  Vernon's  case,  4  Co. 
1.     Then  how  can  she  be  dowable  of  a  trust  after  that  statute  1    For  is 

(6)    Vide  supra,  vol.  1.  p.  517,  n. 

(I)  This  is  the  case  in  1  P.  Wms.  321.  The  case  was  that  the  deceased  husband  bought 
an  estate  in  the  name  of  a  third  person.  The  Court  considered  it  clear  that  the  wife  was  not 
dowable  of  the  trust  estate.  It  appears  by  the  report,  that  the  decree  was  affirmed  in  the 
House  of  Lords.  I  find  by  the  Journals  of  the  House  of  Lords,  that  the  wife  prayed  that  the 
estate  might  be  deemed  part  of  the  personal  estate  of  her  husband,  or  at  least  that  she  might 
be  entitled  to  her  dower  out  of  it.     See  Journ.  Doni.  Proc.  vol.  20,  p.  456. 

(*349)  (*350) 


I 


APPEISDIX.  Scg 

there  any  solid  distinction  between  a  use  before  a  statute  and  a  trust 
after  it  ?  What  was  a  use  but  a  right  to  receive  the  rents  and  protit? 
of  lands  of  which  the  legal  estate  was  in  another  1  And  a  trust  is 
the  very  same  now  :  and  if  before  the  statute  the  right  of  the  wife 
was  considered  strictly  as  a  legal  right,  so  that  the  equitable  interest 
was  not  affected  by  it,  the  reason  holds  equally  strong  since  the  statute? 
that  courts  of  equity  should  follow  what  was  the  rule  before  the  stat- 
ute with  regard  to  those  estates.  How  there  came  to  be  a  differ- 
ence as  to  estates  by  curtesy,  I  cannot  tell ;  nor  how  it  came  to  be  ex- 
tended to  estates  by  curtesy,  and  yet  not  to  dower,  I  cannot  tell.  I  do 
not  see,  on  this  general  question,  whether  a  wife  shall  be  endowed 
of  a  trust  estate  of  inheritance,  that  there  is  one  case,  from  the  time 
of  the  statute  H.  YIII.  to  this  time,  that  is  directly  in  point,  except 
the  case  of  Fletcher  and  Robinson,  Prcced.  in  Cane.  250.  That 
case  is  extremely  short ;  and  the  reason  given  for  it  is,  whether  it  be 
a  good  one  or  no  I  shall  not  say,  that  the  conveyance  was  consider- 
ed as  fraudulent,  being  done  w  ith  an  intent  to  prevent  a  forfeiture  ; 
and  therefore,  in  that  case,  the  Court  seems  to  have  disregarded  it, 
which  shows  it  was  not  determined  simply  on  this  point,  but  on 
other  matters,  which  do  not  fall  in  with  this  case.  The  case  of  Banks 
and  Sutton  seems  to  have  been  determined  on  this,  that  the  time 
of  the  conveyance  was  come,  and  the  husband  had  a  right  to  call 
for  it ;  and  then  the  Court,  upon  considering  that  as  done  which 
ought  to  have  been  done,  micht  properly  assist  the  wife  in  that 
case.  The  case  of  Boltoniley  v.  Fairfax,  Preced.  in  Cane.  336,  before 
my  Lord  Harcourt,  is  an  express  authority  that  a  wife  is  not  dowable  of 
a  trust  estate  of  inheritance  ;  and  to  this  it  may  also  be  added,  that  it  is 
the  general  received  opinion  of  every  one  who  has  attended  this  bar  con- 
stantly, that  they  are  not ;  and  it  is  the  practice  to  make  purchases  in  the 
name  of  the  purchaser  and  trustee — but  to  what  intent  or  purpose  1  Only 
to  prevent  dower,  that  by  there  being  a  survivor  to  the  purchaser,  his 
wife  might  not  be  entitled  to  it.  But  if  it  should  be  ruled,  that  a 
wife  is  entitled  to  a  dower  of  a  titist  estate  of  inheritance,  provisions 
(*)of  this  kind  would  be  overthrown.  I  mention  this,  because  it  is 
hinted  at,  as  if  the  practice  of  conveyancers  was  not  of  great  weight  ; 
and  truly  it  is  not  in  their  power  to  alter  the  law :  but  when  there  is  a 
received  opinion,  and  conformity  of  contracts  and  settlements  thereon, 
it  is  extremely  dangerous  to  shake  it,  which  would  disturb  the  posses- 
sion of  many  who  are  very  quiet,  and  think  themselves  very  secure ; 
therefore  it  ought  to  be  done  only  on  the  clearest  and  plainest  ground. 
In  the  present  case  I  cannot  say  they  are  mistaken,  because  they  have 
gone  on  this  ground,  that  trusts  are  now  what  uses  were  at  the  common 
law,  where  a  wife  was  not  dowable  of  a  use.     There  are  other  cases 

(*351) 


400  APPENPIX. 

where  terms  for  years  have  been  carved  out,  and  the  inheritance  re- 
mains in  (he  husband,  and  as  to  those  there  is  no  difficulty.  Where 
the'term  is  created  for  particular  purposes,  and  the  inheritance  remains 
in  the  husband,  and  descends  to  his  heir,  which  term  is  not  a  bar  at  law 
of  dower,  but  only  prevents  the  execution  of  it  till  (he  term  is  expired, 
there  the  term  may  be  redeemed  ;  and  that  was  the  case  of  my  Lady 
Dudley,  Preced  in  Cane.  241.  There  the  express  limitation  of  the  term 
was  to  the  owner  of  the  freehold  after  the  trust  expired.  As  to  those 
cases  where  the  inheritance  is  sold  for  a  valuable  consideration,  (Preced. 
in  Cane.  65,)  which  was  the  case  of  Lady  Radnor,  and  the  purchaser 
took  an  assignment  of  the  term,  if  it  was  without  notice,  there  could  be 
no  difficulty  ;  but  whether  that  case  was  so  or  not,  I  do  not  remember. 
But  the  present  case  is  not  that  of  a  wife  entitled  to  dower  with  a  cessat 
execiitio ;  for  the  question  here  is,  whether  the  wife  is  dowable  of  an 
equitable  estate  of  inheritance  in  fee  simple  ?  As  to  what  is  said,  that 
this  is  to  be  considered  as  a  contract  on  the  part  of  the  wife,  therefore 
equity  should  supply  it ;  the  answer  is,  equity,  where  there  is  a  valuable 
consideration,  will  supply  form.  But  hath  she  contracted  for  this  par- 
ticular estate  ?  No,  for  nothing  but  what  the  marriage  implies,  which  is^ 
that  she  shall  have  dower  of  what  she  is  dowable  by  law  :  and  then  the 
question  comes  to  this,  whether  she  is  dowable  by  law  of  a  trust  ?  Here 
she  could  have  nothing  of  this  in  contemplation  at  the  time  of  her  mar- 
riage :  for  the  equitable  interest  was  left  to  her  husband,  long  after  the 
time  of  her  marriage,  which  was  in  1713  ;  and  the  equitable  estate  was 
not  given  him  till  1723.  Therefore  the  decree  must  be,  that  the  land 
shall  be  sold  and  enjoyed,  discharged  of  any  claim  of  dower. 

In  another  manuscript  note  of  this  case,  Lord  Talbot  is  (*) reported 
to  have  said  that  trust  estates,  since  the  statute  of  uses,  ought  to  be 
considered  as  uses,  before  the  statute,  of  which  estate  a  woman  could 
not  be  endowed  ;  that  the  case  of  Boltomley  and  Lord  Fairfax  was 
express  in  point  ;  that,  as  this  method  of  conveying  on  purpose  to  pre- 
vent dower,  had  been  used  for  so  many  years,  a  court  of  equity  ought 
not  to  make  a  decree  which  would  overturn  such  a  number  of  settle- 
ments. And  the  reason  of  the  decree  in  the  case  of  Banks  and  Sutton 
(which  he  stated)  was  different :  for  there  the  direction  of  the  will  was, 
that  the  legal  estate  should  be  conveyed  to  Sutton  ;  and  the  wife  mar- 
ried him  on  the  expectation  of  that  estate,  and  it  was  a  fraud  in  the  hus- 
band not  to  call  for  the  settlement.  The  other  cases  of  dower  of  trust 
estates  are,  where  terms  are  created  for  particular  purposes,  and  the  in- 
heritance remains  in  the  husband  :  in  these  cases  she  has  a  title  of  dow- 
er, and  so  she  may  come  into  this  Court  and  redeem  the  term,  which  is 
the  case  of  Lady  Dudley. 

(*352) 


Arpr.NDix.  401 

No.  XIX. 

firt^l  V.  Sawbridgeniul  olhcrs[r-j.      Jhfore  the  J^Iaster  of  the  Rolls. 

Sir  John  Wroth  was  seised  in  fee  of  the  lands  in  disputi',  and  mort- 
gaged the  same  for  one  thousand  years  to  Francis  Hill,  as  a  security 
for  1,100/.,  which,  by  several  mesne  assignments  and  further  char<^es, 
to  the  amount  of  2,400/.  in  the  whole,  came  to  Richard  Watson,  in 
trust  for  Sir  Edward  Bret;  and  Brewster  (who  assigned  the  same  to 
Watson),  covenanted  that  Sir  John  Wroth,  or  his  heirs,  should  convey 
the  inheritance  to  Sir  Edward  Bret :  and  Sir  Edward  Bret,  reciting  by 
his  will,  that  he  had  purchased  of  Brewster  the  residue  of  the  said  term 
of  one  thousand  years,  and  that  there  was  a  covenant  in  the  purchase 
deed  from  Brewster  as  aforesaid,  but  that  Sir  John  Wroth  dying  before 
the  conveyances  were  executed,  and  leaving  an  infant  of  eight  years  old, 
his  heir  at  law,  it  was  then  impossible  to  have  the  fee  conveyed  :  there- 
fore Sir  Edward  Bret  declared  it  to  be  his  will,  that  when  the  heirs  of 
Sir  John  Wroth  should  attain  the  age  of  twenty-one,  a  conveyance 
Bhould  be  executed  according  to  the  settlement  in  tail  after  mentioned ; 
and  he  devised  the  same  to  John  Bret  Fisher  for  life,  remainder 
(*)to  trustees,  to  preserve  contingent  remainders;  remainder  to  his  first 
and  every  other  son  in  tail  male  successively  ;  remainder  to  Nathaniel 
Fisher  for  life,  and  in  the  very  same  manner  ;  and  so  to  Edward  Fish- 
er ;  remainder  to  the  right  heirs  of  Stephen  Beckingham  and  Richard 
Watson  (the  trustees  of  the  term},  whom  he  made  his  executors  ;  and 
then  he  directed  the  remainder  of  the  term  should  remain,  and  be  atten- 
dant on  the  inheritance,  according  to  the  limitations  above  mentioned  : 
and  all  other  his  real  and  personal  estate  he  devised  to  John  Bret  Fish- 
er, Nathaniel  and  Edward  Fisher.  Upon  the  death  of  Sir  Edward  Bret, 
the  executors  proved  the  will ;  and  afterwards  Nathaniel  and  Edward 
Fisher  died  intestate,  without  ever  having  any  issue  ;  and  John  their 
brother  took  out  administration  to  them.  John  Bret  Fisher,  thinking 
the  limitations  over  to  the  right  heira  of  Beckingham  and  Watson  void, 
took  himself  to  be  absolute  owner  of  the  term,  as  co-residuary  legatee,  and 
representative  of  the  other  two  his  brothers,  in  case  he  should  ever  die 
without  having  issue,  and  mortgaged  the  residue  of  the  term  for  one  thou- 
sand years  to  the  defendant  Sawbridge,  as  a  security  for  350/.  One 
Newland  purchased  the  reversion,  and  the  equity  of  redemption,  from  the 
right  heirs  of  Sir  John  Wroth,  for  one  hundred  broad  pieces  ;  but  before 
the  purchase,  he  promised  John  Bict  Fisher  should  have  the  benefit  of 
it,  if  he  would  pay  him   the  purchase-money,  his    expenses,  and  a  small 

(c)    Vide  supra.  vtA.  1.  p.  .ISe. 

VOL.   II.  61  (*853) 


402  APPENDIX. 

gratuity  :  however,  Joha  Brat  Fisher,  a  lung  time  after  the  purchase 
was  completed,  neglected  to  comply  with  the  terms,  and  so  it  was  sold 
to  the  defendant  Sawbridge.  John  Bret  Fisher,  by  his  will,  devised  all 
his  real  and  personal  estate  to  the  defendant  Sawbridge,  and  made  him 
his  executor,  and  afterwards  died  without  ever  having  issue. 

The  plaintiff  filed  his  bill,  to  have  the  estate  conveyed  to  him  ac- 
cording to  the  will  of  Sir  Edward  Bret,  all  the  precedent  limitations 
being  spent,  and  to  have  an  account  of  the  rents  and  profits,  he  being 
heir  at  law,  and  also  representative  of  the  personal  estate  of  Richard 
Watson,  who  died  in  the  life-time  of  John  Bret  Fisher :  but  Stephen 
Beckingham  is  still  alive,  and  made  a  defendant  in  this  cause. 

Sir  Joseph  Jekyll,  Master  of  the  Rolls,  after  argument  on  both  sides, 
and  time  taken  to  consider  of  it,  delivered  his  opinion  to  the  efTect 
following  :  The  plaintifT  in  this  case  does  not  want  to  have  the  term 
assigned  to  him,  because  he  has  the  legal  interest  of  it  in  him,  as  rep- 
resentative of  Richard  Watson,  who  was  a  (*)  trustee  of  the  same  for 
Sir  Edward  Bret.  Then  the  point  to  be  determined  is  with  regard  to  the 
account  of  the  rents  and  profits.  Though  Brewster  covenanted  that 
Sir  John  Wroth,  or  his  heirs,  should  convey  the  inheritance  to  Sir  Ed- 
ward Bret  and  his  heirs,  yet  it  does  not  appear  that  Sir  John  Wroth  was 
under  any  obligation  to  convey  the  same  ;  for  he  was  no  party  to  the 
conveyance  to  Sir  Edward  Bret,  nor  did  any  thing  to  show  his  agree- 
ment thereto  :  but  the  covenant  of  I'rewster  to  Sir  Edward  Bret,  being 
before  the  statute  of  frauds,  there  might  be  a  parol  agreement  by  Sir 
John  Wroth  that  he  would  convey,  and  it  would  be  good  ;  otherwise  it 
would  be  difficult  to  account  why  Brewster  should  enter  into  such  a 
covenant.  However,  Sir  Edward  Bret,  by  his  will,  desiring  the  heirs 
of  Sir  John  Wroth  to  convey  the  inheritance,  and  directing  the  limita- 
tions of  the  same,  and  that  the  term  should  be  attendant  on  it,  did  in- 
tend to  devise  the  inheritance,  and  not  the  term  in  gross.  But  it  is 
said,  though  the  inheritance  cannot  pass,  the  term  may,  according  to 
the  limitations  in  the  will  of  Sir  Edward  Bret.  It  is  not  necessary  now 
to  enter  into  the  question  how  far  limitations  of  terms  are  good,  or  whe- 
ther, by  such  limitations  as  those  in  the  present  case,  all  the  prior  de- 
visees dying  without  having  had  issue,  the  remainder  of  this  term  could 
vest  in  the  plaintifT  as  to  one  moiety.  But  if  I  was  to  deliver  my  opin- 
ion about  it,  I  should  be  under  great  difficulty  :  for  on  this  point  there 
is  the  opinion  of  one  Lord  Chancellor  against  another  ;  my  Lord  Cow- 
per,  in  the  case  of  Higgins  and  Dowler,  2  Vern.  600,  and  Salk.  156^ 
held  such  remainder  of  a  term  to  be  good,  all  the  parties  dying  without 
ever  having  any  issue  :  and  by  the  present  Lord  Chancellor,  there  have 
been  two  cases  determined,  Clare  and  Clare,  P.  7.  G.  IL  Saberton  and 
Saberton,  8  G.  IL     In  one  of  them  it   may  be  taken,  there  was  an  estate 

(*354) 


APPENDIX.  403 

tail  in  the  first  taker  ;  but  in  the  other  it  seems  not  to  be  so  ;  but  in  both 
of  them  my  Lord  Chancellor  held  such  limitations  of  estates  tail,  though 
to  persons  not  in  being,  and  never  vesting,  to  be  too  remote,  and  so  deli- 
vered his  opinion.  Higgins  and  Dowler,  as  it  appears  to  me,  was  not 
clearly  stated  and  urged,  but  was  taken  as  it  is  reported  in  Salk.  and 
Vern.,  which  my  Lord  Chancellor  said  was  incorrectly  done  in  both  of 
them  :  but  I  have  a  complete  report  of  it  by  two  gentlemen  ;  and  in 
the  case  of  Stanley  and  Lee,  M.  8.  G.  IL,  T  looked  into  the  pleadings 
and  the  Register's  book  ;  and  on  the  whole  matter  I  find  the  judgment 
of  my  Lord  Cowper  was,  that  such  limitations  never  having  been  in 
(*)es*e,  and  so  not  vesting,  the  limitation  over  might  be  good.  There 
is  one  case  I  did  not  mention,  when  I  gave  my  opinion  in  Stanley  and 
Lee,  and  that  is  Massenburgh  and  Ashe,  Chan.  Rep.  275,  in  which 
the  Judges  were  of  opinion,  tliat  the  limitation  of  a  trust  of  term 
must  be  considered  as  limitations  of  a  term  at  law  ;  and  that  case  is 
stronger  for  allowing  limitations  over  than  this,  though  that  was  on  a 
deed,  and  this  is  on  a  will,  which  has  a  more  favorable  construction. 
But  I  must  leave  this  point  of  the  limitations  of  a  term  for  future 
consideration,  if  ever  it  comes  before  the  Court,  for  this  case  will 
turn  on  a  ditferent  point(I).     Here  Sir   Edward   Bret  thought  he  was 

(I)  It  is  very  satisfactory  to  find  that  Sir  Joseph  Jekyll  did  not  give  up  his  opinion  in  Stan- 
ley V.  Lee.  The  doctrine  in  the  case  of  Stanley  v.  Lee  (2  P.  Wms.  S.  C.  MS.)  is  now 
vvpII  established,  and  the  case  of  Clare  v.  Clare  (For.  21,  S,  C.  MS.)  is  overruled  by  a  series 
of  authorities.  See  Sabbarlon  i\  SaLliarlon  For.  55.  245.  S.  C.  MS.;  Ki.ight  «.  Ellis, 2 
Bro.  C.  C.  570  ;  Phipps  v.  Lord  Mulgrave,  3  Ves.  jun.  516.  The  rule,  as  now  settled,  is  ac- 
curately stated  by  Mr.  Fearne — Whatever  number  of  liniitalions  there  may  be  after  the  first 
executory  devise  of  the  v.  hole  interest,  any  one  of  them,  which  is  so  limited  that  it  must  take 
effect  (if  at  all)  within  twenty-one  years  after  the  period  of  a  life  then  in  being,  may  be  good 
in  event,  if  no  one  of  the  preceding  executory  limitations,  which  could  carry  the  whole  interest, 
happens  to  vest ;  but  wheu  once  any  preceding  executory  limitation,  which  carries  the  whole 
interest,  happens  to  take  place,  that  instant  all  the  subsequent  limitations  become  void,  and 
the  whole  interest  is  then  become  vested.     Exec.  Dev.  4th  edit.  415. 

In  a  former  edition  of  this  work  a  discussion  was  introduced,  in  this  place,  on  the  question, 
whether  the  term  of  twenty-one  years,  after  a  life  in  being,  could  be  taken  as  a  term  in  gross 
in  the  case  of  an  executory  devise.  This  will  now  be  found  in  n.  (2)  to  the  last  edition  of 
Gilbert  on  Uses,  p.  260.  The  case  of  Beard  and  Westcott,  there  mentioned,  was  fully  argued 
before  the  Master  of  the  Rolls, upon  the  certificate  being  returned;  and  on  the  17th  Dec.  1811, 
the  Master  of  the  Rolls  gave  the  following  judgment : — "This  case  stood  over  in  consequence 
ofa  suggestion,  that  the  certificate  of  the  Court  of  Common  Pleas  involved  in  it  the  decision  of 
a  new  question,  which  had  not  undergone  any  particular  discussion,  or  received  any  particular 
consideration  in  that  Court:  namely,  how  far  the  validity  ofa  limitation  over,  by  way  of  execu- 
tory devise,  is  affected  by  the  circumstance  that  the  period  of  21  years,  after  the  duration  of 
an  estate  for  life,  has  not  any  connection  whatever  with  the  minority  of  any  person  taking  an  in- 
terest under  the  preceding  limitations.  Now  I  do  understand,  that  the  question  certainly  did  not 
receive  any  particular  consideration  in  the  Court  of  Common  Pleas,  it  being  taken  for  granted^ 
that  the  rule  upon  this  subject  stood  as  it  is  commonly  laid  duwn  in  the  books:  namely,  that  thu 
executory  devise  falls  within  the  allowed  limits,  if  the  event  upon  which  it  is  to  take  place  must 
happen  within  a  period  of  21  years  affcr  the  life  or  lives  in  being.  I  am  not  aware,  however, 
that  the  point  has  been  directly  decided  ;  and  Lord  Alvanley's  doctrine  in  the  case  of  Thellus- 

(*355) 


404  API'LNUIX. 

(*)entitled  to  the  trust  of  the  inheritance,  and  did  not  intend  to  devise 
the  term  in  gross,  but  intended  to  devise  the  inheritance,  and  (*)that 
it  should  attract  the  term;  Whitechurch  v.  Idem.  10th  Feb.  G.  I. 
A  man  being  seised  of  a  reversion  in  fee,  and  having  the  trust  for  a 
term  for  years  to  attend  it,  made  a  will  of  his  own  hand-writing,  and 
thereby  carved  out  several  limitations  of  the  land  and   premises,  not  un- 

son  and  Woodford,  is  against  the  addition  of  21  years,  except  by  way  of  provision  for  the 
circumstance  of  the  devisee  being  under  age,  or  in  ventre  sa  mere  at  the  expiration  of  the 
life  or  lives  in  being. — And  as  the  question  has  now  been  raised,  and  as  there  is  that  degree 
of  sanction  to  the  doubt,  it  does  seem  to  me  desirable,  that  it  should  be  set  at  rest  by  the  deci- 
sion of  a  court  of  law;  so,  therefore,  I  propose  to  send  the  case  back  again  to  the  Court 
of  Common  Pleas,  to  call  their  attention  to  the  point,  that  they  may  have  an  opportuni- 
ty of  pronouncing  an  explicit  opinion  upon  it.  I  have  received  this  information  from 
some  of  the  Judges." — The  case  was  accf  rdingly  sent  back  to  the  Court  of  Common 
Pleas,  who  refused  to  hear  ■  it  argued,  until  the  point  upon  which  their  opinion  was  re- 
quired was  stated.  Thereupon,  the  following  queslipn,  with  the  approbation  of  the  Mas- 
ter of  the  Rolls,  was  stated  to  be  the  question  for  the  opinion  of  the  Court:  "  How  far 
the  limitations  over,  in  the  event  of  there  being  no  son  or  sons  of  John  James  Beard, 
nor  issue  male  of  such  son  or  sons  living  at  the  death  of  the  said  John  James  Beard' 
or  there  being  such  issue  male  at  that  time,  they  shall  all  die  before  they  attain  their 
respective  ages  of  twenty-one  years,  without  lawful  issue  male,  are  affected  by  the  circum- 
stance, that  they  are  to  take  effect  at  the  end  of  an  absolute  term  of  twenty-one  years,  after 
a  life  in  being  at  the  death  of  the  testator,  without  reference  to  the  infancy  of  the  person 
intended  to  take,  or  by  the  circumstance,  that  there  may  be  issue  of  John  James  living  at 
his  death,  to  whom  the  estate  is  given  by  the  will  (but  who  would  be  incapable  of  tak- 
ing according  to  the  above  certificate),  for  whose  death,  under  twenty-one,  the  limita- 
tion over,  in  the  event  before  mentioned,  must  await." — The  case  has  since  been  argued 
before  the  Judges  of  the  Court  of  Common  "Pkas,  and  they  certified,  that  the  limitations  over, 
in  the  event  of  there  being  no  son  or  sons  of  John  James  Beard,  nor  issue  male  of  sucii  son 
or  sons  living  at  the  death  of  John  James  Beard,  or  there  being  such  issue  male  at  that  time, 
they  shall  all  die  before  they  attain  their  respective  ages  of  twenty-one  years,  without  lawful 
issue  male,  are  not  affected  by  the  circumstance,  that  they  are  to  take  effect  at  the  end  of  an 
absolute  term  of  twenty-one  years,  after  a  life  in  being  at  the  death  of  the  testator,  without 
reference  to  the  infancy  of  the  person  intended  to  take,  nor  by  the  circumstance  that  there 
may  be  issue  of  John  James  Beard  living  at  his  death,  to  whom  the  estate  is  given  by  the  will, 
but  who  would  be  incapable  of  taking  according  to  the  former  certificate  from  the  Judges  of 
this  Court,  for  whose  death,  under  twenty-one,  the  limitation  over,  in  the  event  before  men- 
tioned, must  await.  The  case  is  now  reported  in  5  Taunt,  p.  393.  It  has  been  argued  be- 
fore the  Lord  Chancellor,  who  sent  the  case  to  the  Court  of  King's  Bench.  It  was  argued 
in  that  Court,  and  the  Judges  certified,  that  John  James  Beard,  the  grandson  and  heir  at  law 
of  James  Beard  the  testator,  took,  under  the  said  testator's  will,  an  estate  for  ninety-nine 
years,  determinable  with  his  life,  in  the  freehold  estates  devised  to  him  in  the  first  instance, 
and  also  in  the  leasehold  estates,  if  they  should  so  long  continue  ;  and  that  upon  his  death, 
leaving  one  or  more  sons,  his  first  son  will  take  an  estate  for  ninety-nine  years,  determinable 
with  his  life,  in  the  freehold  estates,  and  what  shall  then  remain  of  the  terms  for  which  the 
leasehold  estates  are  held.  And  that  all  the  limitations,  subsequent  and  expectant  upon  the 
limitation  to  the  first  son  of  John  James  Beard,  arc  void  ;  5  Barn.  &  Aid.  801  ;  and  thatcCT-- 
tificate  has  been  confirmed  by  the  Lord  Chancellor,  1  Turn.  p.  25.  The  point  has  again  been 
agitated  in  the  case  of  Bengough  v.  EJridge,  which  now  stands  for  judgment,  and  will  be 
carried  to  the  House  of  Lords.  In  that  House  it  has  been  decided  that  the  limit  is  a  life  or 
lives  in  being  and  twenty-one  years  afterwards,  without  reference  to  the  infancy  of  any  per- 
son whatsoever ;  but  that  is  the  limit,  and  the  period  of  gestation  is  to  be  allowed  in  those 
cases  only  in  which  the  gestation  exists.  Bengough  v.  Edridge,  1  Sim.  173.  Cadell  v.  Pal- 
mer, 10  Bing.  140. 
(*366)    (*367} 


APPENDIX.  405 

like  those  now  in  question  ;  but  did  not  publish  it  in  the  presence  of  wit- 
nesses ;  and  the  doubt  was  about  the  limitations  of  the  term  ;  for  the 
will  could  not  pass  the  inheritance,  being  not  executed  according  to  the 
statute  of  frauds.  But  it  was  insisted,  it  might  carry  the  term  as  the 
personal  estate,  upon  which  the  opinion  of  the  Court  was  taken.  But 
it  was  determined,  it  should  not  pass,  because  the  devisor  intended  to 
pass  an  inheritance,  and  the  writing  under  the  testator's  own  hand  was 
looked  on  as  an  inchoate  act  to  pass  the  inheritance,  and  therefore 
could  not  operate  on  the  term.  Besides,  the  testator  in  that  case  hav- 
ing prepared  a  writing  which  was  intended  to  be  executed  according  to 
the  statute,  there  was  no  notice  taken  of  any  terra  that  should  be  attend- 
ant on  the  inheritance,  as  there  is  in  the  present  case,  which  makes  it 
stronger  against  the  plaintiff  than  it  was  in  that  case.  That  case  looks 
like  an  authority  that  must  govern  the  present  case  ;  for  though  Sir 
Edward  Bret  was  not  entitled  to  the  trust  of  the  inheritance,  yet  he 
thought  Sir  John  Wroth  was  bound  to  convey,  and  on  that  assurance 
and  persuasion  made  his  will  and  intended  to  pass  it  as  an  inheritance. 
There  are  several  cases  where  a  man  intended  to  pass  something,  and 
yet  the  law  will  not  allow  it ;  as  in  case  of  a  devise,  where  there  is  an 
uncertainty  either  of  the  person  or  the  thing,  a  fortiori  here  it  should  be 
void,  because  the  testator  intended  to  pass  what  he  had  not,  for  he  in- 
tended to  pass  the  inheritance  when  he  had  it  not ;  and  there  is  a  great 
difference  between  real  and  personal  estates,  as  to  being  assets  or  not, 
and  also  as  to  the  course  of  succession  to  whom  the  same  shall  go  after 
the  death  of  the  owner  ;  and  there  is  likewise  a  difference  where  a  will 
is  made  as  to  the  limitations  of  the  one  and  of  the  other ;  therefore 
when  the  testator  intended  (*')to  pass  an  inheritance  and  had  it  not,  there 
is  no  reason  to  suppose  he  designed  to  pass  a  term  in  gross  ;  for  he  says 
the  term  shall  be  attendant  on  the  inheritance  according  to  the  limita- 
tions mentioned  in  the  will ;  and  so,  as  to  passing  the  term,  the  testator 
had  not  animum  teslandi  :  therefore  I  conceive  the  bill  must  be  dis- 
missed. 


No.  XX. 


Forshall  v.  Cole  and  Short  (d),  Ch,  27ih  JVo«.  1733.    • 
The  JMaster  of  the  Rolls  sitting  for  the  Chancellor. 

Bill  was  brought  to  have  a  bond  delivered  up,  and  proceedings  at  law 
upon  it  to  be  stayed.  The  bond  was  entered  into  on  this  occasion : 
one  Durant,  in  1728,  made  a  mortgage  to  plaintiff,  but,  before  this,  had 
given  a  bond  to  Cole  for  200/.     Cole,  in  1725,  obtained  judgment  upon 

(d)    Vide  supra,  vol.  1.  p.  562. 

(*368) 


4  06  APPENDIX. 

his  bond,  and  afterwards,  since  the  date  of  the  mortgage,  took  out  an 
elegit,  and  extended  the  mortgaged  premises  towards  satisfaction  of  his 
judgment  ;  upon  this,  plaintiff,  to  save  expense  and  discharge  the  lands, 
gave  Cole  a  bond  for  the  200/.  and  interest  ;  but  it  was  agreed  between 
them,  that  the  bond  should  be  deposited  in  Short's  hands,  and  only  to 
be  made  use  of  if  Cole's  judgment  was  entered  so  as  to  affect  the 
lands  precedent  to  plaintiff's  mortgage.  The  judgment  was  signed  in 
1725,  but  not  docketed,  secundum  stat.  4  &  5  W.  &  M.  c.  20,  till  28th 
January   1730. 

Upon  reading  the  statute,  the  Master  of  the  Rolls  was  of  opinion  that 
judgments  cannot  be  docketed  after  the  time  mentioned  in  the  act,  viz. 
the  last  day  of  the  subsequent  term  in  which  they  are  entered,  and  that 
the  practice  of  the  clerk's  docketing  them  after  that  time  is  only  an  abuse 
for  the  sake  of  their  fees,  and  ineffectual  to  the  party  ;  and  he  said  he 
would  speak  to  the  Judges  about  it 

Solicitor-General. — It  is  proved  in  the  cause,  that  the  mortgagee  had 
notice  of  the  judgment  at  the  time  of  the  mortgage. 

Master  of  the  Rolls. — Notice  is  not  material,- the  statute  not  making 
a  difference  between  a  mortgagee  with  notice  or  without ;  and  besides, 
the  notice  which  the  act  requires  is  the  docketing,  which  by  the  act  is 
become  a  constructive  notice ;  and  therefore  he  decreed  the  bond  to  be 
delivered  up  and  cancelled,  and  that  the  plaintiff  should  have  his  costs 
both  at  law  and  in  (*)this  Court,  and  that  the  10/.  which  plaintiff  had 
paid  upon  the  bond,  should  be  returned,  which  he  said  the  attorney 
concerned  in  entering  the  judgment  ought  to  pay  out  of  his  own  pocket; 
and  that  he  believed  an  action  on  the  case  would  lie  against  him,  for  he 
believed  it  was  owing  to  his  negligence  that  the  judgment  was  not 
rightly  entered  :  and  the  defendant  Short  having  delivered  up  the  bond 
to  Cole,  and  permitted  him  to  proceed  at  law  upon  it,  contrary  to  his 
trust,  he  decreed  costs  as  against  him  likewise. 


No.  XXI. 

Burton  and  others  v.  Todd. 
Todd  V.  Gee  and  others  (e). 

3lst  March  1818.     Judgment  by  Sir  Thomas  Plumcr,  Master  of  the 

Rolls. 

These  two  causes  are  now  to  be  disposed  of.  The  first  cause  was 
instituted  in  May  1804,  by  Messrs.  Gee  and"  Osborne,  and  Mrs.  Bur- 
ton, the  trustees  under  the  will  of  Mr.  Burton,  against  Mr.  Todd,  for  a 

(e)   Vide  supra  vol.  ii.  p.  10. 
(*369) 


APPENDIX.  407 

specific  performance  of  an  agreement  to  purchase  an  estate  ;  which 
agreement  was  entered  into  in  August  1802. 

In  June  1806,  the  common  order  for  a  reference  to  the  Master, 
whether  a  good  title  could  be  made  to  the  estate,  was  obtained  by  the 
plaintiffs  in  this  suit. 

In  Dec.  1807,  the  Master  made  his  report  that  a  good  tit!e  could  not 
be  made.  To  this  report  the  plaintiffs  took  an  exception,  which  was 
overruled  in  May  1809  ;  no  further  proceedings  have  been  taken  in  this 
suit. 

In  October  1808,  Mr.  Todd  instituted  a  suit  against  Messrs.  Gee 
and  Osborne,  the  trustees,  and  against  the  persons  interested  in  taking 
the  accounts  under  the  will  of  Mr.  Burton,  to  have  the  necessary  ac- 
counts taken,  and  for  a  specific  performance  of  the  agreement,  and  for 
a  compensation  as  to  the  two  hundred  and  twenty-seven  acres  in  the 
agreement  mentioned  to  be  tithe-free,  or  subject  to  a  very  triffing 
modus. 

In  December  1813,  a  decree  was  made  in  this  cause,  whereby  it  was 
referred  to  Mr.  Steele  to  take  the  necessary  accounts  and  inquiries,  in 
order  to  ascertain  whether  a  good  title  could  be  (*)made  to  the  estate 
in  question;   and  to  state  whether  a  good  title  could  be  made  thereto. 

In  December  1816,  the  Master  made  his  report ;  stating,  that  a  good 
title  could  be  made  to  the  estate  in  question,  except  as  to  the  two  hun- 
dred and  twenty-seven  acres  in  the  agreement  mentioned  to  be  tithe- 
free,  or  subject  only  to  a  very  trifling  modus,  and  which  the  Master  re- 
ported not  tithe-free,  or  subject  to  a  very  trifling  modus. 

The  decree,  therefore,  in  the  second  suit  is  nearly  of  course.  The 
plaintiff",  Mr.  Todd,  is  entitled  to  a  specific  performance,  and  to  a  com- 
pensation for  the  tithes  of  the  two  hundred  and  twenty-seven  acres. 
The  only  questions  are,  1st.  As  to  the  principle  on  which  the  account 
must  be  taken  :  and  2dly,  As  to  the  costs. 

By  the  agreement  in  August  1802,  it  was  stipulated  that  the  pur- 
chase-money should  be  paid  by  instalments,  one-third  on  the  10th  Oc- 
tober 1802  ;  one-third  on  the  5th  January  1803  ;  and  the  remaining 
one-third  on  the  5th  April  1803,  on  a  good  title  to  the  estate  being  then 
made. 

The  purchaser  paid  the  first  instalment,  amounting  to  5,333/.  6s.  8d. 
on  the  10th  October  1802,  and  the  vendors  have  ever  since  had  the 
same  in  their  possession,  and  have  also  received  all  the  rents  and  profits 
of  the  premises  ;  the  plaintiff,  Mr.  Todd,  never  having  been  let  into 
possession  of  any  part  of  the  premises.  An  abstract  was  delivered  in 
April  1803,  and  was  returned  by  Mr.  Todd,  with  the  objections  of 
counsel,  before  May  1803  ;  and  the  principal  objection  taken  to  the 
title  was,  that  the  title  could   not  be  approved   unless  the  necessary  ac- 

(*360) 


408  APPENDIX. 

counts  were  taken  in  a  court  of  equity.  The  vendors  insisted  that  the 
purchaser  was  not  entitled  to  have  the  accounts  taken  ;  and  instituted 
their  suit  in  May  1804,  to  compel  the  purchaser  to  take  the  estate  with- 
out having  the  accounts  taken  ;  they  failed  in  that  attempt,  and  Mr. 
Todd  having  subsequently  instituted  the  second  suit  for  the  purpose  of 
having  the  accounts  taken,  was  resisted  by  the  vendors,  but  succeeded. 
The  vendors  then  having  been  uniformly  wrong,  and  the  purchaser 
uniformly  right,  and  the  vendors  having  been  in  possession  of  one-third 
of  the  purchase-money,  and  in  the  receipt  of  all  the  rents  and  profits  of 
the  estate  for  upwards  of  fifteen  years;  the  question  is, upon  what  prin- 
ciple are  the  accounts  to  be  taken  1  The  usual  rule  is,  that  the  purchaser 
is  to  have  the  rents,  and  to  pay  4/.  per  cent,  for  his  purchase-money.  This 
rule  (*)is  rather  hard  where  the  delay  is  not  caused  by  the  purchaser. 
The  rents  seldom  yield  4/.  per  cent.  ;  and  the  purchaser  having  been 
kept  out  of  the  enjoyment  of  the  estate,  receives  it  at  last  in  a  worse 
condition.  In  the  present  case,  fifteen  and  a  half  years'  delay  has  been 
caused  by  the  resistance  of  the  vendors  ;  during  that  time  they  have  had 
the  enjoyment  of  nearly  6,000/.  of  the  purchase-money  (which  in  that 
period  would  be  doubled) ;  and  have  also  received  all  the  rents  :  to  de- 
cree the  usual  accounts,  would  be  to  give  the  party  who  is  wrong,  all  the 
advantage  of  the  delay  occasioned  by  himself :  it  would  be  to  reward 
the  party  who  has  done  wrong,  and  to  give  him  a  double  benefit,  and  to 
work  injustice  to  the  party  who  has  been  uniformly  correct.  The  cause 
is  novel,  there  is  no  precedent.  It  may  be  said,  that  Mr.  Todd  might 
have  applied  to  have  the  5,333/.  6s.  Sd.  or  the  rents  and  profits,  brought 
into  Court  and  laid  out,  but  he  has  not  done  so,  and  the  vendors  have 
reaped  the  benefit  of  his  not  doing  so. — Under  these  circumstances,  the 
vendors  must  account,  not  only  for  the  rents  and  profits  of  the  estate 
from  October  1802,  but  also  for  interest,  after  the  rate  of  4/.  per  cent. 
upon  one-third  of  the  rents  and  profits. 

As  to  costs.  The  original  bill  must  be  dismissed  with  costs,  because 
the  vendors,  apprised  of  the  olyection,  instituted  an  improper  suit.  As 
to  the  second  suit.  The  vendors  took  no  steps  to  amend  the  original 
bill,  and  to  frame  it  properly  to  obviate  the  objection  to  the  title.  Mr. 
Todd  had  therefore  no  means  of  obtaining  a  specific  performance  of 
the  agreement,  but  by  the  institution  of  the  second  suit ;  the  vendors 
resisted  and  failed  ;  Mr.  Todd  succeeded,  and  a  specific  performance 
was  decreed.  There  was  no  inconsistency  on  the  part  of  Mr.  Todd. 
The  will  of  Mr.  Burton  rendered  it  necessary  that  the  accounts  should 
be  taken.  All  the  parties  to  the  second  suit  were  interested  in  the  ac- 
counts. The  vendors  must  be  at  the  expense  of  clearing  the  title,  by 
taking  the  accounts ;  and,  therefore,  Mr.  Todd  is  entitled  also  to  the 
costs  of  the  second  suit. 
(*361) 


APPENDIX. 


409 


No.  XXII.  (/) 
Duke  of  Bedford  v.  Tnislees  of  the  British  Museum. 

Mr.  Shadwellthus  slated  the  case  to  the  Lord  Chancellor.— The  nature 
of  the  case  is  this  ;  1  can  state  it  very  shortly  :  Lady  Rachael  Vaughan, 
prior  to  her  marriage  with  liorc!  William  (*) Russell,  was  seised  in  fee 
of  the  land  on  which  the  Museum  now  stands,  which  was  parcel  of 
another  portion  of  land  called  Longfield  and  Babersfield  ;  and  she  made 
a  conveyance,  by  which  she  vested  the  legal  estate  of  the  whole  of  those 
lands  in  trustees,  and  also  the  legal  estate  of  Southampton  House,  which 
was  her  own  inheritance,  in  trust  for  her.  She  then  married  Lord  Wil- 
liam Russell,  and  by  a  deed  dated  1675,  to  which  she  was  a  party  as 
well  as  Lord  William  Russell  and  the  trustees  of  the  legal  estate  were 
parties,  she  and  Lord  William  Russell  and  the  trustees  together  were 
empowered  by  the  deed  to  grant  and  convey  the  ground  on  which  the 
Museum  stood.  By  that  conveyance  to  Ralph  Montagu,  Ralph  Monta- 
gu covenanted,  among  other  things  in  a  general  way,  that  he  would  not 
erect  buildings  on  the  ground  which  was  conveyed  to  him,  to  the  north- 
ward of  the  line  of  Southampton  House.  The  covenant  he  made  was  a 
covenant  not  with  the  trustees  in  whom  the  legal  estate  was,  but  it  was 
with  Lady  Rachael  Vaughan  and  her  heirs  and  assigns.  That  is  the 
general  nature  of  the  case.  After  that  Lord  William  Russell  died,  and 
the  legal  estate  in  the  remainder  of  the  land  which  had  not  been  con- 
veyed to  Ralph  Montagu,  was  re-conveyed  by  Lady  Rachael  Vaughan, 
and  then  by  assignments  and  descents  the  legal  estate  of  the  land  in  the 
adjacent  land,  the  Museum  garden,  has  descended  and  become  vested 
in  the  present  Duke  of  Bedford.  By  the  deed,  which  was  a  conveyance 
to  Ralph  Montagu,  a  rent  was  reserved  of  5/.  annually,  which  has 
been  paid  by  the  present  Duke  of  Bedford ;  and  besides  that,  there 
was  also  a  reservation  of  a  rent  of  3Z.  per  day,  in  case  any  build- 
ings should  be  erected  in  contravention  of  the  covenant ;  and  that 
rental  of  3/.  a  day  is  secured  by  a  power  of  entry  and  distress. 

The  question  now  arises  Avhether,  inasmuch  as  Southampton  House 
has  been  pulled  down  and  demolished,  but  on  the  site  of  it  and  on  the 
land  adjacent  to  the  Museum  gardens,  houses  have  been  built  by  the 
Duke  of  Bedford  and  his  tenants,  whether  or  not  he  has  a  right  in 
eiquity  to  restrain  the  trustees  of  the  British  Museum  from  makmg 
buildings  in  the  Museum  gardens,  contrary  to  the  letter  of  the  covenant 
which  was  made-  by  Ralph  Montagu  with  Lady  Rachael  Vaughan  ? 
That  is  the  general  nature  of  the  case.     When  the  case  was  heard  be- 

(/)    Vide  nupra,  vol.  ii.  |>.  81. 

VOL.   n.  52  (*362) 


410  APPENDIX. 

fore  the  Vice  Chancellor,  this  difficulty  occurred  in  his  Honor's  mind  : 
he  thought  that  the  covenant  was  not  a  covenant  which  ran  along  with 
the  land  ;  that  is,  that  inasmuch  as  the  rent  of  (*)5/.,  which  was  the  an- 
nual rent,  was  only  reserved  out  of  the  land  granted  to  Ralph  Montagu  ; 
and  inapmuch  as  the  rent  of  3/.  per  day  in  the  event  of  buildings  being 
made,  was  only  reserved  out  of  the  land  granted  to  Ralph  Montagu,  that 
it  could  not  be  said  that  the  covenant  nol  to  build  on  the  land  granted 
to  Ralph  Montagii,  vpas  a  covenant  that  ran  with  the  land  which  was  not 
granted  to  Ralph  Montagu  ;  and  therefore  his  Honor  thought,  that  in- 
asmuch as  the  covenant  could  not  at  all  be  said  to  run  with  the  land,  so 
that  no  action  at  law  could  be  sustainable.  He  thought  that  a  court  of 
equity  could  not  interfere  to  give  the  parties  a  more  beneficial  remedy 
and  a  more  beneficial  right  than  had  been  reserved  to  themselves  by  the 
form  of  the  conveyance. 

The  Vice  Chancellor  gave  the  following  judgment  : — This  is  an  ap- 
plication to  me  on  the  part  of  the  Duke  of  Bedfonl  to  grant  an  injunc- 
tion to  restrain  the  trustees  of  the  British  Museum  from  building  on  the 
land  which  they  hold  in  that  character  to  the  northward  of  the  ancient 
line  of  Southampton  House ;  and  the  foundation  of  the  application 
rests  upon  the  grant  which  was  made  by  the  trustees  of  Lady  Rachael 
Russell,  and  by  her  appointment  to  Mr.  Ralph  Montagu,  \C'ho  originally 
built  Montagu  House  ;  and  it  is  then  said,  that  Ralph  Montagu  is  to 
be  taken  to  have  covenanted  with  Lady  Rachael  RusselU  her  heirs 
and  assigns,  that  he  never  would  build  to  the  northward  of  that  par- 
ticular line.  Then  that  the  trustees  are  about  to  infringe  that  covenant, 
and  that  this  Court  will  interfere  to  restrain  that  infringement.  The  po- 
licy of  the  law  of  England  does  not  allow  that  the  owner  of  land,  when 
he  thinks  fit  to  part  with  it,  is  to  impose  any  captious  restraint  upon  the 
lawful  enjoyment  of  the  land  ;  and  those  who  seek  to  enforce  a  cove- 
nant which  affects  to  restrain  a  particular  lawful  use  and  enjoyment  of 
land,  must,  according  to  the  acknowledged  principle  of  the  law  of  Eng- 
land, show  that  they  have  some  interest  in  that  restraint,  and  that  it 
is  not  for  a  captious  or  arbitrary  purpose.  The  covenant  is  in  terms 
made  with  Lady  Rachael  Russell  and  her  heirs  and  assigns  simply. 
In  terms,  therefore,  it  is  a  mere  personal  covenant.  It  is  a  covenant 
with  Lady  Rachael  Russell  and  those  who  in  all  times  after  her  should 
become  entitled  to  receive  the  rent  of  51.  a-year,  which  is  one  of  the 
conditions  of  the  grant  in  fee  :  and  looking  at  the  cov<  nant  according 
to  those  terms,  the  question  would  be,  is  the  interest  of  the  Duke  of 
Bedford,  as  the  heir  or  assign  of  Lady  Rachael  Russell  in  that  5/.  a 
year,  to  be  materially  affected  by  the  erection  of  these  intended  build- 
ings (*)to  the  northward  of  the  line  of  Southampton  House  1  The 
question  is,  if  the  Duke  of  Bedford,  as  the  heir  or  assign,  was  treating 

(*363) (*364; 


APPENDIX. 


411 

Simply  in  that  character,  could  he  establish  in  a  court  of  justice  that  his 
interest  in  this  perpetual  rent  of  51.  a  year  will  be  injured  by  the  build- 
ings now  sought  to  be  erected,  because  if  he  is  entitled  to  an  action  at 
law  for  damages,  he  is  necessarily  entitled  to  the  injunction  of  this 
Court  to  restrain  that  breach  of  covenant  ?  It  is  not,  however,  con- 
tended in  argument,  that  it  is  possible  fur  the  Duke  of  Bedford  and  for 
his  counsel  here  to  represent  that  his  interest  in  this  ol.  a  year  will  be 
in  any  manner  lessened  by  the  buildings  now  sought  to  be  erected,  but 
on  the  contrary,  it  is  perfectly  plain  that  the  erection  of  additional  build- 
ings would  give  an  additional  security,  as  it  would  give  more  value  to 
the  land,  and  of  course  not  diminish  the  legal  interest  of  the  Duke  of 
Bedford  in  that  rent,  and  if  it  rested  there,  it  certainly  would  not  be  con- 
tended here  that  it  would  be  possible  to  call  for  the  interference  of  this 
Court  by  way  of  injunction. 

It  is,  however,  said,  that  according  to  the  true  eftect  of  this  instru- 
ment, it  is  plain  that  the  agreement  of  these  parties  with  respect  to  these 
cove  ants  was  made  not  for  the  purpose  of  affording  additional  security 
for  the  rent  of  ol.  a  year,  but  for  the  purpose  of  preventing  such  a  use 
of  this  land,  as  should  tend  to  diminish  either  the  valuable  or  pleasura- 
ble enjoyment  of  the  land  adjoining — the  valuable  and  pleasurable  en- 
joyment of  the  land  upon  which  Southampton  House  was  built,  and 
that  the  law  will  permit  those  restraints  ;  so  that  I  who  am  possessed 
of  a  particular  property  of  which  I  have  the  personal  enjoyment,  that  I 
have  a  right  so  to  deal  with  land  which  belonged  to  me,  and  which  is 
contiguous  to  mine ;  that  I  have  a  right  so  to  deal  with  it,  if  I  think  fit 
to  alienate  it,  as  to  restiain  any  use  which  may  tend  either  to  diminish 
the  pleasure  or  the  profit  of  the  land  which  I  retain. 

The  question,  therefore,  is,  whether  upon  the  whole  of  this  deed  it 
does  appear  that  these  covenants  have  been  so  framed  as  to  aflbrd  evi- 
dence of  an  agreement  that  Mr.  Ralph  3Iontagu  entered  into  with 
Lady  Rachael  Russell  and  those  who  represent  her,  as  being  the  own- 
ners  of  Southampton  House  and  the  land  adjoining,  that  he  would 
never  use  this  land  but  in  the  manner  prescribed,  ei:her  to  the  prejudice 
of  the  profit  or  pleasure  of  Southampton  House  ?  If  this  deed  does 
afford  evidence  of  such  an  intention  to  the  parties  to  the  instrument, 
there  is  a  (*)clear  remedy  at  law  against  the  act  which  is  now  sought 
to  be  enforced,  and,  as  I  before  observed,  a  clear  remedy  in  a  court  of 
equity  by  way  of  injunction  to  restrain  the  commission  of  that  act. 

The  consideration,  therefore,  is,  as  I  first  suggested  to  the  bar,  as  to 
what  would  ultimately  appear  to  be  the  real  question  between  the  par- 
ties, whether  this  deed  does  or  does  not  afford  evidence  of  an  agree- 
ment not  between  Lady  Rachael  Russell  and  Mr.  3Iontagu  personally, 
but  between    Mr.  Montagu  and  those   who  claim  under  him    the  sub- 

(*366) 


412  APPENDIX. 

ject  of  the  grant,  and  between  Lady  Rachiel  Russell  and  those  who 
claim  under  her  Southampton  House  and  the  site  of  that  house. 
It  did  appear  to  me  the  first  moment  the  case  was  opened,  that  such 
ultimately  must  be  the  question  in  this  case.  It  has  been  argued 
with  all  the  ability  and  ingenuity  which  the  bar  could  afford — af- 
ter all  the  research  that  the  authority  of  the  Court  could  afford,  but 
I  confess  the  principle  remains  untouched  in  my  mind.  If.  thi^  deed 
does  afford  evidence  at  law  that  such  was  the  agreement  of  these  par- 
ties, then  this  Court  will  follow  the  law,  and  will  act  upon  the  same 
agreement,  and  will  interfere  to  prevent  the  commission  of  the  act.  But 
if  a  court  of  law  declares  that  this  deed  affords  no  evidence  of  such  an 
agreement,  I  cannot  admit  the  principle  that  a  court  of  equity  can  read 
this  instrument  to  have  a  different  effect  than  a  court  of  law.  A  court 
of  equity  cannot  say,  that  although  a  court  of  law  has  declared  that  the 
instrument  affords  no  evidence  of  an  agreement,  that  it  will,  upon  the 
facts  stated,  collect  tlv>t  the  intention  of  the  parties  was  to  that  effect,  or 
act  upon  the  facts  thus  specified.  My  opinion  is,  that  a  court  of  equity, 
in  the  construction  of  an  agreement,  must  follow  the  law ;  and  if  at  law 
the  construction  is  the  same  as  in  equity,  its  powers  will  be  given  for  a 
different  purpose,  namely,  for  the  purpose  of  restraining  injury,  and  not 
of  giving  damages.  I  must,  therefore,  according  to  my  view  of  the  case, 
send  the  question  to  a  court  of  law  to  determine  what  the  intention  of 
the  parties  really  was  ;  but  I  will  relieve  the  parties  from  any  disability 
or  obstruction  they  ma^  receive  in  a  court  of  law  in  respect  of  the  form 
of  this  covenant ;  and  whatever  the  parties  may  feel  will  facilitate  the 
real  decision  of  ihe  question  at  law,  I  will  take  care  to  afford  them.  I 
will  take  care  that  they  shall  have  every  facility  to  enable  a  court  of 
law  to  decide  the  actual  question  that  is  meant  to  be  submitted. 

(*)Lord  Eldon  ultimately  decided,  that  under  the  circumstances,  the 
acts  of  the  parties,  the  alteration  of  tl^  property,  &c.  the  right  to  relief 
in  equity  was  at  an  end. 


No.  XXIII. 

Rea  V.  Wiiliams,  {Exch.)(g). 

The  plaintiff  Rea  and  one  Pritchard  purchased  jointly  a  lefise  mtide 
by  the  Duke  of  Beaufort  for  the  life  of  another  person,  and  they  jointly 
took  the  profits  of  it  for  some  time  ;  but  afterwards  they  conveyed  the 
estate  to  the  defendant  Williams,  in  consideration  of  300/.,  as  was  ex- 
pressed in  the  conveyance,  though  no  part  of  the  money  was  ever  paid, 
and  Williams  acknowledged   by  his  answer,  that  he  was  a  mere  trustee 

(g)   Vide  supra,  vol.  ii.  p.  127.  129. 

(*366) 


APPENDIX.  413 

for  the  parties ;  but  no  declaration  of  trust  was  ever  executed,  nor  did 
it  any  way  appear  with  what  view  the  estate  was  vested  in  the  defend- 
ant, any  further  than  it  was  beUeved  it  was  done  to  screen  it  from  ex- 
ecution, they  being  both  of  them  much  indebted.  Afterwards  Pritch- 
ard  died  intestate,  and  the  defendant  WilHams  took  out  administration 
to  him,  but  there  was  not  assets  enough  to  pay  all  his  debts.  This 
cause  came  on  to  a  hearing  on  the  bill  and  answer,  and  the  question  was, 
whether  the  trusts  of  the  estate  belonged  to  Rea  the  survivor,  as  the 
whole  estate  indisputably  would,  if  the  legal  estate  had  continued  in  the 
two  purchasers'?  To  prove  the  trust  would  survive,  were  cited  1  Vern. 
217  ;  Eq.  Cas.  Abr.  291  ;  2  Vern.  566,  683. 

Mr.  Wilbraham,  to  show  this  trust  did  not  survive,  took  a  distinction 
between  2  Vern.  556,  and  the  present  case  ;  for  there,  he  said,  was  an 
express  limitation  of  the  trust  to  the  two  daughters,  so  they  might  take 
jointly  ;  but  this  is  a  resulting  trust  only,  and  no  express  limitation  ; 
and  equity,  which  discourages  joint  tenancies,  may  construe  that  to  be  a 
tenancy  in^common  ;  Salk.  158.  If  a  joint  tenant  for  years  mortgages 
his  part  of  the  term,  this  is  a  severance  of  the  joint  tenancy,  2  Vern. 
683. 

Reynolds,  Chief  Baron. — I  think  the  joint  tenancy  of  the  trust  in 
this  case  was  not  severed  :  every  one  who  has  an  estate  has  two  rights 
in  him,  a  legal  estate  and  an  equitable  interest ;  nothing  passed  by  the 
conveyance  to  the  defendant  but  the  legal  estate,  and  the  equitable  inte- 
rest resided  in  the  two  purchasers,  and  (*) remained  as  it  originally  was, 
the  consequence  of  which  is,  that  it  must  go  to  the  plaintiff  by  survivor- 
ship. Carter,  Thompson  and  Fortescue  were  of  the  same  opinion ; 
and  Fortescue  said,  he  saw  no  difference  between  an  express  and  an 
implied  trust.   •  » 


No.  XXIV. 

Lechvure  v.  Lechmere{h),  Ch.  E.  T.  Geo.  II. 

This  case  was  elaborately  argued  upon  the  appeal.  The  argument 
lasted  four  days.  Upon  the  first  question  Lord  Talbot  delivered  his 
opinion  at  considerable  length.  Upon  the  second  question  he  pro- 
nounced the  following  judgment  : 

The  second  question  is  as  to  the  satisfaction,  whether  what  descend- 
ed to  the  heir  at  law  is  to  be  considered  as  a  satisfaction  of  what  he  is 
entitled  to  under  this  covenant.  As  to  questions  of  satisfactions  where 
they  are  properly  so,  they  have  always  been  between  debtor  and  credi- 
tor or  their  representatives.     As  to  Mr.  Lechmere  /  do  not  consider 

(h)   Vide  supra  vol.  il.  p.  151,  152,  153. 

(*367) 


414  APPENDIX. 

him  as  a  creditor,  but  as  standing  in  the  place  of  his  ancestor,  and 
thereby  entitled  to  what  would  have  vested  in  his  ancestor.  A  con- 
structive satisfaction  depends  on  the  intention  of  the  party,  to  be  collect- 
ed from  circumstances.  But  then  the  thing  given  must  be  of  the  same 
kind,  and  of  the  same  or  a  greater  value.  The  r-eason  is  plain,  for  a  man 
may  be  bountiful  as  well  as  just ;  and  if  the  sum  given  be  less  than  the 
debt,  it  cannot  be  intended  as  a  satisfaction,  but  may  be  considered  as 
a  bounty  ;  and  if  the  thing  given  is  of  a  different  nature,  then,  also,  as  the 
intention  of  the  party  is  not  plain,  it  must  be  considered  as  a  bounty. 
But  I  do  not  think  the  question  of  satisfaction  properly  falls  within  this 
case,  for  here  it  turns  on  what  was  the  intention  of  my  Lord  Lech- 
mere  in  the  purchases  made  after  the  articles,  for  as  to  all  the  estates 
purchased  precedent  to  the  articles,  there  is  no  color  to  say,  they  can  be 
intended  in  performance  of  the  articles  ;  and  as  to  the  leasehold  for 
life,  and  the  reversion  in  fee  expectant  on  the  estates  for  life,  it  cannot 
be  taken  they  were  purchased  in  pursuance  of  the  articles,  because 
they  could  not  answer  the  end  of  them.  But  as  to  the  other  purchases 
(in  fee  simple,  in  possession,  &c.)  though  considered  as  a  satisfaction 
to  a  creditor,  yet  they  do  not  answer,  because  they  are  (*)not  of  equal 
or  greater  value.  Yet  why  may  they  not  be  intended  as  bought  by  him 
with  a  view  to  make  good  the  articles  ]  The  Lord  Lechmere  waa- 
bound  to  lay  out  the  money  with  the  liking  of  the  trustees,  but  there 
was  no  obligation  to  lay  it  out  all  at  once,  nor  .was  it  hardly  possible  to 
meet  with  such  a  purchase  as  would  exactly  tally  with  it.  Parts  of  the 
land  purchased  are  in  fee  simple,  in  possession,  in  the  south  part  of  Great 
Britain,  and  near  to  the  family  estate.  But  it  is  said  they  are  not 
bought  with  the  liking  of  the  trustees.  The  intention  of  naming  trustees 
was  to  prevent  unreasonable  purchases,  aq^  the  want  of  this  circum- 
stance, if  the  purchases  are  agreeable  in  other  respects,  isno  reason  to 
hinder  why  they  should  not  be  bought  in  performance  of  the  articles. 
It  is  objected,  that  the  articles  say  the  land  shall  4)e  conveyed  immedi- 
ately. It  is  not  necessary  that  every  parcel  should  be  conveyed  so  soon 
as  bought,  but  after  the  whole  was  purchased,  for  it  never  could  be  in- 
tended that  there  should  be  several  settlements  under  the  same  articles. 
Whoever  is  entitled  to  a  performance  of  the  covenant,  the  personal  es- 
tate must  be  first  applied  so  far  as  it  will  go,  and  if  the  covenant  is  per- 
formed in  part,  it  must  make  good  the  deficiency.  But  where  a  man 
is  under  an  obligation  to  lay  out  30,000/.  in  lands,  and  he  lays  out  part 
as  he  can  find  purchases  which  are  attended  with  all  material  circum- 
stances, it  is  more  natural  to  suppose  these  purchases  made  with  re- 
gard to  the  covenant  than  without  it.  When  a  man  lies  under  an  ob- 
ligation to  do  a  thing,  it  is  more  natural  to  ascribe  it  to  the  obligation  he 
lies  under,  than  to  a  voluntary  act,  independent  of  the  obligation.  Then 
(*368) 


APPENDIX.  415 

as  to  all  the  cases  of  satisfaction,  though  these  purchases  are  not  strict- 
ly a  satisfaction,  yet  they  may  be  taken  as  a  step  towards  performance 
and  that  seems  to  me  rather  his  intention  than  to  enlarge  his  real  estate. 
The  case  of  Wilcox  and  Idem,  2  Vern.  558,  though  there  are  some 
circumstances  that  are  not  here,  yet  it  has  a  good  deal  of  weight  with 
me.  There  the  covenant  was  not  performed,  for  the  estate  was  to  be 
settled,  but  the  land  was  left  to  descend,  and  a  bill  was  brought  to  have 
the  articles  made  good  out  of  the  personal  estate ;  to  which  it  was 
answered,  that  the  2001.  per  annum  was  bought,  which  descended  to 
you.  It  is  true  a  settlement  hath  not  been  made,  but  they  were  bouoht 
with  an  intention  to  make  a  settlement,  and  you  can  make  one.  The 
same  will  hold  as  strong  in  the  present  case,  that  these  lands  were 
bought  to  answer  the  purposes  of  the  articles,  and  fall  within  that  com- 
pass(*;  and  it  is  not  an  objection,  to  say  they  are  of  unequal  value,  for 
a  covenant  may  be  executed  in  part,  though  it  is  not  so  in  satisfaction ; 
and  in  this  particular  I  differ  from  the  J\Iaster  of  the  Rolls.  There 
must  be  an  account  of  what  lands  in  fee  simple  in  possession  were  pur- 
chased after  the  articles  entered  into,  and  so  much  as  the  purchase-mo- 
ney of  such  lands  amounts  to  must  be  looked  on  in  part  of  satisfaction 
of  the  30,000/.  to  be  laid  out  in  land  under  the  articles,  and  the  residue 
of  the  30,000/.  must  be  made  good  out  of  the  personal  estate. 


No.  XXV. 

Abstract  of  the  Special  Verdict,  in  Fairfield  v.  Birch{i). 

Edmond  Kelly,  being  seised  in  fee  in  1747,  made  a  settlement  before 
his  intended  marriage,  in  consideration  of  the  wife's  porti«»n,  as  to  part  to 
trustees  in  fee,  in  trust  to  sell  and  pay  off  incumbrances  which  aniouut- 
ed  to  4,000/.  As  to  the  residue,  to  himself  for  life,  remainder  to  trus- 
tees in  the  usual  way,  to  preserve  remainders  ;  remainder  to  the  use 
that  the  wife  might  receive  a  jointure  rent-charge,  in  bar  of  dower; 
subject  thereto,  to  the  first  and  other  sons  of  the  marriage  successively 
in  tail-male  ;  remainder  to  the  first  and  other  sons  of  Edmond  Kelly, 
by  any  other  wife,  successively  in  tail-male  ;  remainder  to  two  brothers 
of  the  settler  and  their  issue  male  in  strict  settlement;  remainder  to 
Ignatius  Kelly,  the  uncle  of  the  settler  for  life  ;  remainder  (after  a  limi- 
tation to  trustees  to  preserve)  to  his  first  and  other  sons  successively  in 
tail-male,  with  'the  reversion  to  the  settler's  right  heirs.  Power  to  the 
settler  if  he  survived  his  wife,  having  issue  by  her  a  son,  to  jointure  any 
after-taken  wife,  to  the  extent  of  60/.  a  year ;  and  if  no  issue  male,  of 

(i)   Vide  supra,  vol.  li.  p.  16i. 

(*369) 


416  APPENDIX. 


I 


100/.  a  year;  and  if  no  issue,  150/.  a  year,  and  2,000/.  for  younger 
children's  portions.  Covenants  for  title  and  further  assurance.  Power 
to  the  settler  to  charge  5007.  but  not  to  affect  the  jointure.  Proviso, 
that  if  the  settler  and  his  brother  should  die  without  issue,  the  estates 
should  stand  charged  with  2,000/.  for  the  sisters  of  the  settler,  or  their 
issue. 

The  lands  vested  in  the  trustees  in  fee,  were  sold  to  Robert  Birch, 
under  a  decree  for  the  payment  of  the  incumbrances,  which  were  ac- 
cordingly paid  out  of  the  purchase-mone^. 

(*)Robert  Birch  had  notice  of  the  settlement  of  1747,  in  the  year 
1755. 

Ann  Kelly  died  in  the  lifetime  of  Edmond,  previous  to  the  2d  May 
1758,  without  having  had  issue. 

Edmond,  on  the  2d  of  May  1758,  on  his  marriage  with  Harriet 
Hihcks,  in  consideration  of  a  portion  of  2,500/.,  settled  the  estates  to 
himself  for  life,  remainder  to  trustees  to  preserve,  remainder  to  the 
intent  that  the  intended  wife  might  receive  a  jointure  rent-charge  of 
300/.  per  annum,  if  there  should  be  issue,  and  subject  thereto,  to  the 
first  and  other  sons  of  the  marriage  successively  in  tail-male ;  remain- 
der to  Edmond  the  settler  in  fee. 

15th  July  1761,  Edmond,  for  a  valuable  consideration,  conveyed  to 
Robert  Birch  the  settled  estates  in  fee.  Part  of  the  consideration 
the  jury  found  to  be  the  debts  for  which  the  estates  under  the  decree 
had  been  sold. 

The  brothers  of  Edmond  died  in  his  lifetime  unmarried,  and  without 
issue. 

The  lessor  of  the  plaintiff  was  the  grandson  of  Ignatius,  the  tincle. 

Edmond,  the  settler,  died  in  1768,  without  ever  having  had  issue. 

The  lessor  of  the  plaintiff  claimed  under  her  father,  Robert  Birch's 
will,  and  was  entitled  to  a  portion  under  a  term  of  years,  created  by  his 
marriage  settlement,  which  was  made  in  consideration  of  his  intended 
wife's  portion. 


No.  XXVI. 

Sloane  v.  Cadogan, 
Rolls,  December  1808(A;). 

Under  a  settlement  made  previously  to  the  marriage  of  Earl  Cadogan 
and  Frances,  his  wife,  the  sum  of  20,000/.  was  assigned  to  trustees 
upon  certain  trusts,  under  which,  William  Bromley  Cadogan,  one  of 

(k)   Vide  supra,  vol.  ii.  p.  168. 
(*370) 


APPENDIX.  4jiy 

the  children  of  the  marriage,  became  entitled,  subject  to  his  father  Lord 
Cadogan's  life  interest  therein,  to  one  fourth  share  of  the  20,000/.,  which 
sum  was  afterwards  invested  in  the  3  per  cent,  reduced  annuities,  in 
the  trustees  (*) names.  By  an  indenture,  bearing  date  the  26th  May 
1788,  William  Bromley  Cadogan  assigned  to  "William  Rose,  William 
Bulkley,  Duncan  Stewart,  and  Alexander  Graham,  their  executors,  ad- 
ministrators and  assigns,  all  such  part,  share  or  proportion,  as  he  the  said 
William  Bromley  Cadogan  was  entitled  to  as  aforesaid,  expectant  on 
the  decease  of  the  Earl,  his  father,  of  and  in  the  said  sum  of  20,000/., 
and  all  the  interest  which  after  the  decease  of  the  Earl  should  become 
due  in  respect  of  such  share,  To  hold  the  same  immediately  after  the 
death  of  the  said  Earl,  and  subject  to  his  life  estate  or  interest  therein, 
in  the  mean  time,  unto  the  sai^  William  Rose,  William  Bulkly,  Duncan 
Stewart,  and  Alexander  Graham,  their  executors,  administrators  and  as- 
signs, upon  trust,  immediately  after  the  decease  of  Lord  Cadogan, %y 
and  out  of  the  first  monies  which  should  be  received  by,  or  come  to 
their  hands,  by  virtue  of  the  same  indenture,  to  pay  1,000/.  to  such  per- 
son or  persons,  and  for  such  uses,  intents  and  purposes,  as  he  the  said 
William  Bromley  Cadogan  should,  by  any  writing  or  writings  under  his 
hand,  direct  or  appoint ;  and,  in  default  of  such  direction  or  appoint- 
ment, then  to  pay  the  said  sum  of  1,000/.  unto  the  said  William  Brom- 
ley Cadogan,  of  his  assigns,  to  and  for  his  and  their  own  use  and  bene- 
fit. And  upon  trust,  to  place  out  or  invest  the  residue  or  surplus  of  the 
said  monies  and  premises,  as  soon  as  might  be,  after  the  same  should 
be  received  by  them  the  said  trustees,  in  such  stocks,  funds,  or  securi- 
ties as  therein  mentioned  ;  and  to  stand  possessed  of  all  the  said  resi- 
due of  the  said  trust  monies  which  should  remain  after  payment  of  the 
said  sum  of  1,000/.  and  of  the  said  stocks,  funds  or  securitis  ;  upon 
trust  to  pay  unto  or  authorize  the  said  William  Bromley  Cadogan  and 
his  assigns,  to  receive  the  interest,  dividends,  and  annual  produce,  for 
life ;  and  after  his  decease,  and  in  case  his  wife,  the  plaintiff,  should  be 
then  living,  upon  trust  to  pay  unto  or  authorize  her  and  her  assigns  to 
receive  the  interest,  dividends,  and  annual  produce  thereof  for  her  life, 
for  her  and  their  own  use  and  benefit,  the  same  to  be  in  lieu  of  dower ; 
and  immediately  after  the  decease  of  the  survivor  of  the  said  William 
Bromley  Cadogan  and  plaintiff,  upon  trust  to  pay,  assign  and  transfer  the 
said  residuum,  and  the  stocks,  funds,  or  securities  for  the  same,  in  such 
manner  for  the  benefit  of  the  issue  of  the  marriage  between  them  the 
said  William  Bromley  Cadogan  and  plaintifl',  as  therein  mentioned  ;  and 
*'  for  default  of  such  issue,  (*')upon  trust  to  pay,  assign  and  transfer  the 
same  to  such  person  or  persons,  and  upon  such  trusts,  for  such  uses, 
intents  and  purposes,  and  by,  with,  under  and  subject  to  such  powers, 
provisos,  charges,  conditions,  and  limitations  over,  as  he  the  said  Wil- 
voL.   II.  53  (*371)    (*372) 


418  APPENDIX. 

liam  Bromley  Cadogan,  at  any  time  or  times  during  his  life,  by  any  deed 
or  deeds,  writing  or  writings,  with  or  without  power  of  revocation,  to 
be  sealed  and  delivered  in  the  presence  of,  and  attested  by  two  or  more 
credible  witnesses,  or  by  his  last  will  and  testament  in  writing,  or  any 
writing  in  the  nature  of,  or  purporting  to  be  his  last  will  and  testament, 
to  be  by  him  signed  and  published,  in  the  presence  of,  and  attested  by 
such  and  the  like  number  of  witnessess,  should  direct,  limit  or  appoint ; 
and  in  default  of  such  direction  or  appointment,  or  in  case  of  any 
such,  and  the  same  should  not  be  a  complete  disposition  thereof,  then 
upon  trust  to  pay,  assign  and  transfer  the  said  residue,  and  the  stocks, 
funds  or  securities  for  the  same,  or  so  much  thereof  whereto  any  such  di- 
rection or  appointment  as  aforesaid  should  not  extend,  to  the  said  Earl 
Cadogan  (his  father),  his  executors,  administrators  and  assigns,  to  and  for 
his  and  their  own  use  and  benefit.  And,  in  the  same  indenture  is  con- 
tafhed  a  proviso  empowering  the  said  William  Eromley  Cadogan  and  his 
wife,  the  plaintiff,  at  any  time  during  their  joint  lives,  to  revoke  the  said 
trusts,  or  any  of  them,  and  to  appoint  or  limit  new  or  other  trusts  in  the 
manner  therein  mentioned.  The  3  per  cents,  were  sold,  and  the  pro- 
duce lent  to  the  Earl  in  17S6,  upon  real  security,  by-way  of  mortgage- 
William  Bromly  Cadogan,  on  the  11th  May  1789,  made  his  will, 
which  was  signed  and  published  by  him  in  the  presence  of  and  attested 
by  two  credible  witnesses,  and  thereby  directed  his  executrix  to  sell  a 
leasehold  estate  at  Reading ;  "  and  as  to  the  money  arising  from  the 
sale  thereof,  I  give  the  same  to  my  executrix  ;  and  as  to  all  the  rest 
and  residue  of  my  estate  and  effects  whatsoever,  I  give  and  bequeath 
the  same  to  my  dear  wife  Jane  Cadogan."  And  he  appointed  her  his 
sole  executrix.  And  the  said  testator  shortly  afterwards  made  a  codicil 
to  his  will,  which  was  not  attested,  in  the  words  following :  Whereas, 
by  marriage  settlement,  I  have  given  to  my  dear  wife  Jane  Cadogan 
for  her  life,  the  whole  interest  of  the  moiety  of  my  mother's  fortune 
which  was  settled  upon  me,  as  will  appear  by  the  settlement  itself,  re- 
serving to  myself  1000/.  for  my  own  private  use.  And  whereas  I  bor- 
rowed at  Midsummer  1789,  of  Mr.  (*)  William  May,  of  Bingfield  Mill, 
the  sum  of  600/.  at4|  per  cent,  interest,  and  gave  as  security  for  the 
same  the  joint  bond  of  myself,  the  Rev.  Mr.  Bulkley,  and  Mr.  William 
Simmonds  Higgs,  of  Pangbourn-lane,  Reading ;  1  hereby  direct,  that 
the  above-mentioned  1,000/.  be  appropriated  to  the  discharge  and  pay- 
ment of  the  said  bond  ;  and  if  it  should  be  convenient  to  my  dear  and 
honored  father,  the  Right  honorable  Lord  Cadogan,  to  pay  the  said  sum 
of  600/.  to  the  aforesaid  Mr.  May,  of  Bingfield,  and  to  take  to  himself 
the  4|  per  cent,  interest,  and  deduct  the  whole  principal  and  interest  out 
of  the  moiety  of  my  mother^s  fortune,  which  comes  to  me  and  my  heirs 
at  his  decease,  I  shall  esteem  it  a  great  favor  added  to  the  many  I  have 
(*373) 


APPENDIX.  419 

received  from  him  before.  And  the  testator  afterwards  made  a  codicil 
to  his  will,  also  not  attested,  in  the  words  following  :  In  November  1790, 
Lord  Cadogan  was  so  kind  as  to  pay  the  above-mentioned  600/.  for  me 
to  Mr.  May,  of  Bingfield,  by  the  which  fatherly  act  of  goodness,  add- 
ed to  many  others  of  the  same  kind,  I  am  freed  from  all  debts  and 
incumbrances  whatever,  excepting  an  annuity  of  10/.  a  year,  which  I  am 
engaged  to  pay  to  Mrs.  Warsand,  Mrs.  Cadogan's  aunt,  now  living  at 
Paradise-row,  Chelsea,  for  her  life  ;  and  also  to  pay  the  expenses  of 
her  funeral. 

There  was  no  child  of  the  marriage  between  the  testator  and  his  wife. 
The  testator  did  not,  in  his  lifetime,  in  any  manner,  execute  his  general 
power  of  appointment  in  the  indenture  of  26th  May  1783,  or  his  power 
of  appointment  of  the  said  sum  of  1,000/.  unless  by  his  will ;  nor  did  he, 
together  with  the  plaintiff,  execute  their  joint  power  of  revocation  there- 
in contained. 

The  plaintiff  claimed  to  be  entitled  to  one  fourth  part  of  the  20,000/., 
and  the  bill  was  filed  against  the  executors  of  the  Earl  of  Cadogan,  to 
establish  her  right. 

The  defendants,  in  their  answer,  stated,  that  the  Earl  paid  off  the 
600/.  and  interest,  mentioned  in  the  codicils,  and  they  submitted,  that 
they  became  entitled  to  be  repaid  such  sum  out  of  the  1,000/.  ;  and  they 
claimed  to  be  entitled  to  the  whole  of  the  fourth  share  of  the  said  Wil- 
liam Bromley  Cadogan,  subject  to  the  plaintiff's  right  to  the  interest  for 
her  life  (save  and  except  the  aforesaid  1,000/.  part  thereof,)  under  the 
indenture  of  26th  of  May  1783. 

Mr.  Richards,  Mr.  Stephen,  Mr.  Bowdler,  and  Mr.  Sugden,  for  the 
plaintiff.  The  argument  of  the  latter,  which  in  a  great  (*)measure  was 
a  repetition  of  the  arguments  before  urged,  is  the  only  one  of  which  he 
is  enabled  to  give  the  reader  a  full  note. 

It  was  to  the  following  effect : — 

The  first  question  is  as  to  the  600/.  The  defendants  might  as  well 
contend  that  they  are  entitled  to  an  account  of  every  sum  advanced  by 
the  Earl  to  his  son.  In  every  case,  between  a  father  and  child,  a  provi- 
sion by  the  father  is  deemed  an  advancement  for  the  child,  on  account  of 
the  connection  of  blood.  If  a  father  purchase  in  the  name  of  a  child, 
prima  facte,  it  is  an  advancement  for  the  child,  and  the  evidence  to  rebut 
this  lies  on  the  father  ;  whereas,  if  a  purchase  be  made  in  the  name  of  a 
stranger,  the  presumption  is  otherwise,  and  the  evidence  to  rebut  it  lies 
on  the  stranger.  Besides,  if  the  question  here  was  between  strangers, 
payment  might  be  pleaded  although  twenty  years  have  not  yet  elapsed. 
Lord  Mansfield  laid  it  down  that  sixteen,  eighteen  or  nineteen  years 
were  sufficient  whereupon  to  found  the  presumption  of  payment  (Mayor 
of  Hull  V.  Horner,  Cowp.  109  ;   Oswald  r.  Leigb-   1  T.  Rep.  270),  ami 

(*374) 


420  APPENDIX. 

Lord  Erskine  so  considered  the  rule  (Hillary  v.  Waller,  12  Ves.  266). 
And  even  if  payment  would  not  be  presumed,  yet  a  jury  would,  in  this 
case,  be  directed  to  find  a  release.  (Washington  v.  Brymer,  App.  to 
Peake's  Evid.) — [This  point  was  given  up  by  the  defendants.] 

The  principal  question,  however,  is,  whether  the  power  is  executed  ; 
and  first,  whether  it  is  executed  by  the  will  alone  ?  I  must  admit,  that 
in  general  a  sweeping  disposition,  however  unlimited  in  terms,  will  not 
include  property  over  which  the  testator  has  merely  a  power,  unless  an 
intention  to  execute  the  power  can  be  inferred  from  the  will.  But  great 
Judges  have  disapproved  of  this  rule.  Lord  Alvanley,  in  Langham  v. 
Nenny,  3  Ves.  jun.  467,  wished  that  the  rule  had  been  otherwise,  and 
that  it  had  been  held  that  a  general  disposition  would  operate  as  an  exe- 
cution of  the  power  ;  and  in  Hannock  v.  Horton,  7  Ves.  jun.  391,  Lord 
Eldon  said,  that  he  was  not  sure  that  the  rule,  as  now  established,  did 
not  defeat  the  intention  nine  times  out  of  ten.  In  favor  of  the  rule  it 
has  been  said,  that  to  overturn  it  would  be  to  destroy  the  distinction  be- 
tween power  and  property.  That  I  deny.  The  marked  and  only  mate- 
rial distinction  between  power  and  property  is,  that  in  the  case  of  abso- 
lute property,  although  the  party  make  no  disposition  of  it,  yet  it  will  de- 
scend to  his  representatives  ;  whereas  a  person  must  actually  execute 
(*)his  power,  or  the  fund  will  go  over  to  the  person  to  whom  it  is  given 
in  default  of  appointment.  But  why  should  not  the  same  words  operate 
as  an  execution  of  the  power  which  would  pass  the  absolute  interest  1 
Where  is  the  distinction  as  to  the  purposes  of  disposition  between  a 
general  power  like  this  and  the  absolute  interest?  If  the  solemnities 
required  by  the  power  are  adhered  to,  it  would  startle  a  man  of  common 
sense  not  versed  in  legal  subtleties  to  understand  so  refined  a  distinc- 
tion. As  therefore  the  rule  stands  upon  no  principle,  and  has  been  re- 
gretted by  great  Judges,  the  Court  will  be  anxious  to  distinguish  cases, 
and  not  to  consider  every  case  as  within  this  geneml  rule.  Now  there 
not  a  single  case  in  the  books  which  governs  the  present.  Ours  is 
a  peculiarly  strong  case.  The  gift  to  the  Earl  in  default  of  ap- 
pointment was  without  consideration,  and  the  parties  had  a  power  of 
revocation.  The  persons  who  prepared  the  settlement  did  not  under- 
stand the  distinction  between  power  and  property.  They  gave  the 
1,000/.  to  such  persons  as  Mr.  C  should  appoint,  and  in  default  of  ap- 
pointment to  him  and  his  assigns.  There  the  power  was  merely  nuga- 
tory :  it  was  not  larger  than  the  gift,  nor  differed  from  it  in  effect. 
Besides,  here  the  property  moved  from  IMv.  Cadogan  ;  the  settlement 
as  to  the  Earl  was  merely  voluntary,  and  the  power  was  part  of 
Mr.  Cadogan's  old  dominion,  and  consequently  the  execution  of  it 
must  receive  a  favorable  interpetation.  In  this  respect  all  the  cases  are 
distinguishable.     MonUon  v.    Hutchinson,   1    Atk.   558 ;    Andrews  v. 

(*375) 


I 


APPENDIX.  421 

Emmott,  2  Rro.  C.  C.  297  ;  Buckland  v.  Barton,  2  H.  Blackstone, 
130  ;  Croft  v.  Slee,  4  Ves.  jun.  60  ;  Nannock  v.  Horton,  7  Ves.  391  ; 
and  Bradley  v.  Westcott,  13  Ves.  445,  are  all  cases  where  the  power 
was  given  by  one  person  to  another,  and  cannot  be  compared  to  our  case, 
where  the  power  was  reserved  by  the  party  over  his  own  property. 
There  are  two  cases,  I  must  admit,  where  nearly  the  same  circumstances 
did  occur.  Ex  parle  Caswall,  1  Atk.  559  ;  Bennel  v.  Aburrow,  8  Ves. 
609.  But  the  first  case  came  on  merely  upon  a  petition  ;  and  Lord 
Hardwicke  said  he  would  not  say  what  his  opinion  would  be  if  it  came 
on  upon  bill  and  answer.  Besides,  Lord  Hardwicke  overruled  this 
case  by  a  later  determination,  as  I  shall  presently  show.  In  the  last  case 
the  property  in  default  of  appointment  was  given  to  the  next  of  kin,  which 
may  be  thought  to  distinguish  it  from  ours.  But  if  there  is  no  authority 
against  the  plaintiff,  there  are  two  very  considerable  cases  in  her  favor. 
The  first  is  (*)Maddison  v.  Andrews,  1  Ves.  57.  There  a  man  made  a 
settlement,  reserving  to  himself  power  to  charge,  Hmit,  or  appoint  the 
estate  with  any  sum  not  exceeding  1,000/.  By  his  will,  without  making 
the  slightest  reference  to  his  power,  he  gave  some  legacies,  and  then 
charged  all  his  estate  with  the  payment  of  his  dftbts  and  legacies.  Lord 
Hardwicke  held  that  the  power  was  part  of  the  old  ownership  ;  and  that 
it  was  but  a  shadow  of  difference  that  he  had  charged  all  his  estate  ; 
whereas  this  was  before  setded  to  uses,  for  these  powers  to  the  owner 
were  to  be  considered  as  part  of  the  property.  Now  this  is  precisely 
our  case,  and  to  decree  against  the  plaintiff  your  Honor  must  overrule 
Lord  Hardwicke's  decision.  The  other  case  is  Standen  v.  Standen, 
which  has  been  already  so  justly  relied  on.  It  is  impossible  to  read 
that  case  without  seeing  that  Lord  Rosslyn  would  have  decided  it  on 
the  ground  of  the  power  being  equivalent  to  the  ownership,  even  if  tfie 
circumstance  had  not  occurred  to  which  the  decision  is  generally  refer- 
red— that  the  testatrix  had  no  real  estate  except  what  was  subject  to  the 
power.  And  yet  in  that  case  the  power  was  a  gift  by  a  will  from  a  hus- 
band to  his  wife,  and  was  not,  as  in  our  case,  a  part  of  the  donee's  old 
dominion. 

But  if  the  will  of  itself  is  not  an  execution  of  the  power,  that  and  the 
codicil  taken  together  certainly  are.  The  operation  of  a  codicil  even  in 
respect  of  real  estate  is  to  republish  the  will,  and  pass  after-purchased  es- 
tates, although  not  noticed,  if  executed  according  to  the  statute  of  frauds. 
Piggott  V.  Waller,  7  Ves.  jun.  98.  And  where,  as  in  our  case,  new  mat- 
ter is  introduced,  it  forms  an  integral  part  of  the  will,  in  the  same  manner 
as  if  it  had  actually  been  inserted  in  the  will  at  the  time  of  its  execution. 
And  on  this  ground  a  codicil  may  explain  a  doubtful  expression  in  the  will, 
or  may  give  an  estate  by  implication,  where  the  testator  refers  to  what  he 
supposes  he  has  done  by  his  will,  although  the  disposition  in  the  will  is 

(*376) 


422  APPENDIX. 

not  what  he  states  it  to  be.  Hayes  v.  Foorde,  2  Blackst.  698  ;  Beable 
V.  Dodd,  1  T.  Rep.  193.  In  our  case  the  words  in  the  will  are  suffi- 
cient, if  an  intention  appeared  to  execute  the  power,  and  as  such 
an  intention  does  appear  by  the  codicil  which  forms  part  of  the 
will,  they  both  together  amount  to  an  execution  of  the  power.  It  is  im- 
possible to  misunderstand  the  words  in  the  codicil,  "  which  comes  to 
me  and  my  heirs  at  his  decease."  They  admit  of  but  three  construc- 
tions : — 1st.  He  considered  the  fund  as  having  (*)passed  to  his  de- 
visee, who  was  his  h(zres  f actus  :  or  2d,  he  adverted  to  its  going  to  his 
hizres  natus,  or  child  under  the  settlement :  or  3d,  he  looked  to  the 
event  of  its  going  to  his  father,  the  Earl,  in  default  of  appointment. 
The  2d  cannot  be  the  right  construction ;  for  if  there  was  issue  to  take 
the  fund,  their  right  would  prevail  over  the  testator's,  and  the  Earl  could 
not  retain  his  debt  out  of  a  fund  which  would  in  that  event  belong  to 
them.  The  last  construction  is  absurd  :  it  would  amount  to  a  request, 
as  has  been  already  shown,  to  a  man  to  pay  himself  a  debt  out  of  his 
own  money. — But  he  considered  the  property  as  having  passed  to  his 
wife  ;  and  as  he  knew  that  it  was  in  the  hands  of  his  father,  who  had  a 
life-interest  in  it,  he  requested  him  to  retain  the  money  out  of  it,  and 
not  to  let  his  wife  be  troubled  for  it  till  the  property  given  to  her  fell  into 
possession.  This  then  clearly  establishes  the  first  construction.  Our 
case  must  not  be  compared  to  Holmes  v.  Coghill,  7  Ves.  429,  12  Yes. 
206  ;  for  there  the  power  executed  by  the  will  was  discharged  before 
the  execution  of  the  codicil. 

It  will,  however,  I  suppose,  be  objected,  that  the  codicil  is  not  attest- 
ed, and  consequently  cannot  be  deemed  an  execution  of  the  power. 
But  it  is  sufficient  where  a  power  is  executed  by  several  instruments, 
that  the  principal  one  is  duly  executed.  Earl  of  Leicester's  case,  1 
Ventr.  278.  The  will  and  codicil  amount  together  to  an  execution  of 
the  power.  But  I  need  not  insist  upon  this,  because  the  plaintiff  being 
a  wife  is  entitled  to  have  the  defect  in  the  execution  supplied  ;  and  it  is 
not  material  that  she  is  in  part  provided  for,  because  the  husband  is  the 
judge  of  the  quantum  of  provision  ;  nor  is  it  material  that  the  provision 
was  made  after  marriage,  although  to  constitute  a  good  settlement  of  re- 
alty, as  against  a  purchaser,  a  settlement  after  marriage  is  merely  vo- 
luntary. Fothergill  v.  Fothergill,  2  Freem.  256  ;  Hervey  v.  Hervey, 
1  Atk.  661  ;  Churchman  v.  Harvey,  Ambl.  335. 

But  strong  as  these  gronnd^  are,  they  are  not  the  only  ones  upon  which 
the  plaintiff's  case  may  be  rested.  I  mean  to  contend,  that  the  suppos- 
ed settlement  of  Mr.  Cadogan  was  merely  tantamount  to  articles,  that 
the  gift  to  the  Earl  was  voluntary,  and  consequently,  cannot  be  enforced 
by  this  Court,  and  that  it  is  immaterial  that  the  funds  are  now  actually 
vested  in  the  executors  of  the  Earl.  I  may  admit,  that  if  we  asked  the 
(*377) 


APPENDIX.  423 

Court  to  execute  the  articles  they  must  be  executed  in  toto.  But  we  (*)do 
not  require  the  aid  of  the  settlement  to  support  our  title  ;  we  are  content 
to  take  this  fund  as  part  of  Mr.  Cadogan's  property  discharged  from  this 
settlement.  To  constitute  an  actual  settlement,  so  as  to  enable  a  volun- 
teer to  claim  the  benefit  of  it,  it  is  absolutely  necessary  that  the  relation 
of  trustee  and  cestui  que  trust  should  be  established.  Here  Mr.  C.  did 
all  he  could  ;  but  that  is  not  enough.  He  could  not  make  an  actual 
transfer.  The  trustees  in  whom  it  was  vested  would  not  have  been  autho- 
rized in  transferring  it  of  their  own  authority  to  the  trustees  of  Mr.  C.'s 
settlement.  If  a  man  is  seised  of  the  legal  estate,  and  agree  to  make  a  vol- 
untary settlement,  it  cannot  be  enforced.  Can  it  make  any  difference  that 
the  legal  estate  happens  to  he  outstanding  ?  Certainly  not.  As  the  set- 
tlement therefore  was  not  completely  perfected,  the  Earl  could  not  en- 
force it.  It  will  not  be  pretended  that  there  is  any  consideration  as  be- 
tween a  child  and  father,  which  will  call  for  the  interference  of  this  Court. 
The  father  is  as  a  mere  stranger.  It  was  so  as  to  covenants  to  stand  seis- 
ed ;  and  this  Court  does  not  even  advert  to  every  consideration  which  is 
sufficient  to  raise  a  use  under  a  covenant  to  stand  seised.  In  Stevens  v. 
Trueman,  1  Ves.  73,  where  an  agreement  by  a  child,  to  settle  an  es- 
tate in  the  events  which  had  happened  on  her  father,  was  enforced,  it 
was  not  even  hinted  that  there  was  any  consideration  as  between  the 
child  and  father ;  but  the  decision  was  grounded  on  the  gift  by  the 
father  of  500/.  the  child.  And  in  all  the  cases  on  this  subject,  it  will 
be  found  that  the  decisions  proceeded  on  the  ground  of  some  conside- 
ration given  for  the  settlement  on  the  strangers.  Goring  v.  Nash,  3  Atk. 
186,  was  the  mere  case  of  a  settlement  by  a  father  on  his  younger 
daughter.  Osgood  v.  Strode,  2  P.  Wms.  245,  was  an  actual  purchase 
by  the  grandfather  of  the  limitations  to  his  grand-children.  Vernon  and 
Vernon,  in  the  same  book,  594,  turned  upon  someting  like  a  moral  con- 
sideration. Lord  Chancellor  King  did  not  consider  it  a  voluntary  con- 
veyance, 2  Kel.  Cha.  Ca.  10.  Besides,  there  the  Court  relied  upon 
the  covenant  which  might  be  enforced  at  law  ;  and,  therefore,  to  prevent 
circuity,  they  enforced  a  performance  in  specie.  But  even  that  doctrine 
is  now  overruled ;  Hale's  case,  Ch.  1764  ;  and  in  our  case  there  is  no 
covenant.  The  general  doctrine  in  these  cases  is  recognized  in  Colman 
V.  Sarrell,  1  Ves.  jun.  50  ;  followed  by  Ellison  v.  Ellison,  6  Ves.  jun. 
656.  In  this  case,  it  is  not  material  that  the  fund  is  actually  vested  in 
(*)the  defendants  ;  because  it  is  vested  in  them  in  a  different  right. — This 
Court  will  never  permit  a  mortgagor  under  a  settlement  to  claim  the 
fund  in  a  different  character.  In  Ellison  i'.  ElHson,  Lord  Eldon  con- 
sidered, that  when  the  relation  of  trustee  and  cestui  que  trust  was  act- 
ually raised,  although  the  settlement  was  voluntary,  it  was  not  material 
that  the  fund  had,  by  the  effect  of  accident,  got  back  to  the  settler,  as  if 

(*378)  (*379) 


424  APPENDIX. 

the  trustee  of  stock  should  make  the  settler  his  executor.  Now,  .the 
converse  of  this  proposition  must  equally  hold  good,  and  that  is  our 
case. — It  is  like  a  late  case  before  your  Honor,  where  a  legacy  was 
given  to  a  married  woman  by  a  will,  and  the  husband  was  made  exe- 
cutor, and  received  the  legacy  ;  and  your  Honor  held,  that  he  had  not 
reduced  it  into  possession,  so  as  to  prevent  his  wife's  right  by  survivor- 
ship. And  why  1  Because  he  had  received  it  as  executor,  and  not  in 
his  marital  right.  The  characters  were  totally  distinct.  That  decision 
must  govern  our  case. 

Sir  Samuel  Romilly  and  Mr.  Raithby  for  the  defendants  : — 

To  hold  the  will  to  be  an  execution  of  the  power  would  be  to  overrule 
all  the  cases  on  residuary  bequests.  The  case  of  Madison  v.  Andrew 
decides  nothing  more  than  that  where  a  man  has  a  general  power  of 
appointment,  the  fund  shall  be  subject  to  his  debts,  which  has  long 
been  the  law  of  this  Court.  [Master  of  the  Rolls. — But  there,  as  in 
this  case,  the  estate  was  settled  subject  to  the  power.]  At  any  rate  that 
case  is  not  now  an  authority.  As  to  the  codicil,  it  is  said,  that  the  de- 
fect may  be  supplied  ;  and  so  it  may  in  common  cases,  but  here  it  cannot 
be  looked  at,  as  it  is  not  attested  ;  because,  here  no  intention  appears 
to  execute  the  power  on  the  face  of  the  instrument."  A  clear  intention 
must  appear,  before  the  Court  can  aid  the  defect.  The  codicil  is  against 
the  plaintiff.  It  shows  that  he  forgot  there  was  any  power.  He 
thought,  in  default  of  issue,  the  property  would  revert  to  him.  And,  if 
he  forgot  his  power,  the  Court  cannot  hold  that  this  will  pass  under  a 
bequest  of  property.  The  plaintiff  admits  (hat  the  will  of  itself  would 
not  be  an  execution  of  the  power,  and  the  codicil  amounts  to  nothing  ; 
for  this  is  the  case  of  a  non-execution,  and  not  of  a  defective  execu- 
tion. As  to  the  point  upon  the  settlement  being  voluntary,  if  it  be  cor- 
rect, it  cannot  be  acted  upon  in  this  case,  because  the  plaintiff  states  the 
settlement,  and  grounds  .her  title  upon  it.  The  question  is  not  made 
by  the  bill,  and  (*) cannot  now  be  gone  into,  even  admitting  that  the 
law  is  as  stated  ;  whereas,  here  the  fund  is  actually  assigned,  and  the 
defendants  do  not  require  the  assistance  of  the  Court  to  defend  their 
title. 

Mr.  Richards  in  reply  : — 

The  limitation  to  the  Earl  of  Cadogan  was  merely  voluntary  ;  it  was 
a  mark  of  respect  to  him  ;  but,  in  point  of  law,  he  was  a  mere  stranger. 
He  could  not  have  required  a  subpoena  against  our  trustees.  And,  in 
fact,  the  defendants  are  asking  relief,  as  they  want  to  retain  the  fund, 
although  they  are  bound  to  re-assign  it  in  their  character  of  mortgagors. 
[Master  of  the  Rolls. — Lord  Cadogan  could  not  have  come  here,  re- 
quiring Mr.  Cadogan  to  give  him  a  better  security  for  the  money. 
But  here  did  Lord  C.  stand  in  need  of  any  other  aid  ?     The  assignment 

(*380) 


APPENDIX.  425 

was  as  good  an  assignment  as  could  be  made  of  this  reversionary  in- 
terest. You  may  be  a  trustee  for  a  volunteer.]  Upon  the  will  and 
codicil  taken  together,  there  can  be  no  doubt  but  that  this  power  was 
duly  executed.  The  words  in  the  codicil  admit  of  no  other  meaning 
than  that  the  property  was  ^iven  to  his  wife  by  his  will. 

Master  of  the  Rolls  having  taken  time  to  consider : — 

Two  points  were  made  on  the  part  of  the  plaintiff;  1st,  that  it  was 
necessary  that  the  husband  should  execute  the  power.  But,  2dly,  if 
it  was,  that  his  will  did  amount  to  an  execution  of  it.  As  to  the  first,  it 
was  said  that  the  gift  to  Lord  Cadogan  was  merely  voluntary,  and 
Lord  C.  could  not  have  had  any  assistance  from  this  Court :  that  the 
question  is  the  same  as  if  the  representatives  were  parties  seeking  re- 
lief, as  the  circumstance  of  his  executors  having  the  money  makes  no 
difference,  and  I  think  that  that  circumstance  is  immaterial.  But,  as 
against  the  party  himself,  and  his  representatives,  a  voluntary  settlement 
is  binding.  The  Court  will  not  interfere  to  give  perfection  to  the  in- 
strument, but  you  may  constitute  one  a  trustee  for  a  volunteer.  Here 
the  fund  was  vested  in  trustees  :  Mr.  W.  Cadogan  had  an  equitable  re- 
versionary interest  in  that  fund,  and  he  has  assigned  it  to  certain  trus- 
tees, and  then  the  first  trustees  are  trustees  for  his  assigns,  and  they 
may  come  here,  for  when  the  trust  is  created  no  consideration  is  essen- 
tial, and  the  Court  will  execute  it  though  voluntary. 

Then  the  question  is  as  to  the  power.  The  will,  it  was  hardly  contend- 
ed, although  attested,  would  amount  to  an  execution  of  (*)the  power. 
The  circumstance  of  the  attestation  has  been  held  not  to  be  material, 
and  it  is  now  settled  that  a  general  disposition  will  not  include  property 
over  which  the  party  has  only  a  power,  unless  an  intention  appear.  But 
it  is  said,  here  is  a  codicil  which  will  amount  to  %n  execution.  For 
this  no  authority  was  cited  ;  and  I  am  not  aware  that  the  conception 
of  the  testator,  of  his  power  over  his  property,  is  ever  referred  to, 
except  for  the  purpose  of  election.  But  here  the  question  is  upon 
an  execution  of  a  power.  This  point,  however,  is  immaterial,  as  the 
codicil  does  not  establish  the  testator's  intention  ;  he  uses  expressions 
descriptive  only  of  the  interests  which  his  mother's  settlement  gave  him 
in  the  fund,  but  that  does  not  show  that  he  meant  to  exercise  the  power. 
It  is  quite  evident  that  he  had  not  forgot  his  power.  Here  he  remem- 
bered the  settlement,  and  states  that  he  had  an  absolute  power  over  the 
1,000/.  The  request  is  not  evidence  that  he  might  not  consider  that 
Lord  C.  would  not,  in  some  event,  become  entitled  to  the  property. 
But  here  he  meant  only  that  the  money  should  be  deducted  out  of  the 
1,000/.  The  codicil  does  not  show  that  he  considered  all  the  property 
was  his,  which  is  necessary  ;  and  I  should  conclude  the  contrary.  The 
bill  must  be  dismissed  as  to  this  fund. 

VOL.  II.  54  (*381) 


42G  APPENDIX. 

Tso.  XXVII. 

Bury  V.  Bury  {I),  Ch.  11 //t  July  1748. 

Sir  Thomas  Bury  being  seised  of  a  freehold  estate,  and  also  possess- 
ed of  a  leasehold  estate,  on  the  marriage  of  his  son,  Thomas  Bury,  by 
lease  and  release,  3d  and  4th  January  1725,  settled  the  freehold  estate 
on  himself  for  life  ;  remainder  to  his  wife  for  life  ;  remainder  to  Thomas, 
his  son,  for  life  ;  remainder  to  his  intended  wife  for  life  ;  remainder  to 
his  first  and  other  sons  in  tail-male,  with  remainder  to  plaintiff  for 
life,  with  remainder  to  his  first  and  other  sons  in  tail-male  ;  with  re- 
mainder over  :  and  the  leasehold  premises  were  assigned  to  trustees, 
to  raise  money  to  renew  the  lease,  then  to  pay  the  rents  to  Thomas,  the 
son,  for  his  life  ;  remainder  to  his  intended  wife  for  her  life  ;  remainder 
to  his  first  and  other  sons  ;  remainder  to  the  trustees,  to  pay  the  rents 
plaintiff  for  his  life  ;  remainder  to  his  first  and  other  sons,  with  remain- 
der over. 

(*)The  marriage  took  effect ;  the  wife  died  without  leaving  any  issue 
male.      Sir  Thomas  died. 

Thomas  Bury,  on  his  second  marriage  with  the  defendant,  havuig 
renewed  the  lease,  by  indenture,  dated  31st  Dec.  1736,  settled  the  lease- 
hold premises  to  himself  for  life,  remainder  to  his  second  wife,  the  defend- 
ant, for  life,  with  remainders  over ;  and  therein  taking  notice,  that  the 
said  Thomas  Bury  teas  seised  for  the  term  of  his  natural  life  ivith  the 
•power  of  jointuring  in  the  said  freehold  lands,  did,  for  enlarging  the 
jointure,  grant  the  same  to  her,  for  life,  with  remainders  over. 

The  marriage  tc*k  effect.  Thomas  Bury  died  without  leaving  any 
i.ssue  male,  either  by  his  first  or  second  wife ;  so  that  the  plaintiff  be- 
came entitled  to  the  leasehold  premises,  by  virtue  of  the  settlement 
made  on  Thomas  Bury's  first  marriage..  The  bill  was  brought  against 
the  second  wife  for  an  account  of  the  rents  and  profits  of  the  leasehold 
premises,  and  to  have  all  deeds  and  writings  j|"elating  thereto  delivered  up. 

The  defendant  denied  that  she  had  any  notice  of  the  deeds  3d  and 
4th  Jan.  1725,  or  that  there  was  any  settlement  of  the  leasehold  premi- 
ses, or  that  any  such  deed  was  delivered  to  her  with  the  rest  of  the  writ- 
ings. There  was  only  one  witness  who  had-  proved  he  had  been  em- 
ployed to  look  over  the  title  for  Thomas  Bury  and  defendant;  and 
that  amongst  the  papers  he  had  seen  a  foul  draft  of  the  former  set- 
tlement, and  that  there  was  no  power  of  jointuring  in  the  leasehold 
premises,  which  he  told  Thomas  Bury  of. 

Lord  Chancellor. — There  are  two  questions  :    1st,  Whether  she  had 

{/)    Vide  supra,  vol.  ii.  p.  279,  293. 
(*382) 


APPENDIX.  427 

notice  1  2dly,  if  no   notice,  Whether  she  can  protect  herself  under  the 
lease  renewed  by  her  husband  ? 

As  to  the  1st,  there  is  no  positive  evidence  of  notice  :  she  denied  it 
by  her  answer,  and  there  being  only  one  witness  against  that  answer, 
a  decree  cannot  be  made  upon  that  one  witness's  testimony.  Where 
an  agent  has  been  employed  for  a  person  in  part,  and  not  throughout, 
yet  that  affects  the  person  with  notice  :  here  the  recital  in  the  deed  of 
the  power  of  jointuring  was  sufficient  to  have  made  defendant  have 
inquired  into  it,  and  therefore  shall  affect  her.  In  Le  Neve  v.  Le 
Neve  she  admitted  Norton  was  her  agent ;  and  so  that  differs  from  this 
case. 

As  to  the  2d,  There  was  no  surrender  of  the  former  lease,  for  the 
legal  estate  was  in  trustees,  and  therefore  the  Court  is  to  (*)judge  only 
as  between  cestui  que  trust ;  and  though  the  lease  was  renewed  by  T. 
Bury,  yet  it  must  follow  the  trust  of  the  whole  term,  and  he  can  have 
no  contribution  for  what  he  paid,  for  he  enjoyed  it  during  his  life.  If  a 
lease  or  deed  is  wrongfully  given  up  or  destroyed,  you  may  give 
evidence  of  the  purport  of  the  deed,  or  have  a  discovery  from  the 
granters. — Decreed,  that  no  alteration  was  made  in  the  former  trusts 
by  Thomas's  renewal  of  the  lease. 

(*383) 


i 


r 


INDEX. 


In  order  to  avoid  repetition,  the  points  have  been  arranged  under  the  heads  to  which  they 
appeared  principally  to  belong,  and  references  have  been  made  to  the  principal  heads  from 
every  other  title  to  which  it  was  thought  a  reader  would  refer  for  any  particular  pomt. 
To  give  an  instance,  under  the  head,  Bankruptcy,  Act  of,  the  reader  is  referred  to 
"  Notice,"  where  he  will  find,  whether  or  not  an  act  of  bankruptcy  is  notice  to  a  purchaser. 


[^The  figures  refer  io  the  original  pages  as  numbered  al  the  bottonu^ 

Pago 

ABSTRACTS, 

what  should  be  attended  to  in  examining  them  9,  n. 

if  the  abstract  be  not  ready  at  the  day,  the  vendor  cannot 
enforce  the  contract  at  law  419,  425 

but  if  the  purchaser  do  not  call  for  the  abstract  in  suf- 
ficient time  to  complete,  or  receive  it  after  the  day 
fixed,  equity  will  relieve  the  vendor  426 

must  be  furnished  by  the  vendor,  at  his  own  expense  447 

should  mention  every  incumbrance  ib. 

is  considered  complete,  when  ib. 

for  what  purposes  delivered  ib. 

to  whom  the  property  of  it  belongs  ib. 

purchaser  may  maintain  trover  for  it,  pending  the  contract, 
if  retained  by  the  seller  ib. 

See  Time. 
ACRES, 

what  shall  be  deemed  customary,  and  what  statute         324,  325 
ACT  OF  PARLIAMENT.     See  Notice. 
ACT  OF  BANKRUPTCY.     See  Bankruptcy,  act  of. 
ACTION, 

a  party  entitled  to  recover  a  penalty,  where  213.  215 

may  be  brought  by  a  purchaser  for   breach  of  contract, 

where  216 

may  be  brought  by  a  purchaser  for  damages  in  case  of  fraud, 

although  he  hzis  paid  the  money  under  a  decree  233 

purchaser  bringing  an  action  for  his  deposit  on  account  ot 
a  defect  in  title,  must  prove  it  bad  234 


430 


ACTION— contimied. 

purchaser  may  either   bring  an  action  for  non-performance, 

or  for  money  had  and  received,  in  what  cases  234 

purchaser  will  obtain  nominal  damages  only  where  the  ven- 
dor, withoat  fraud,  cannot  make  a  title  235 
or  where   an   agent,  without  fraud,  has  sold  without  a 
proper  authority  ib. 
purchaser  bringing  an  action,  must  give  the  vendor  a  par- 
ticular, of  what                                                                               239 
a  vendor  bringing  an  action  must   show  his  title  to  the  es- 
tate                                                                                              240 
where  a  vendor  brings  an  action  for  the  purchase-money,  a 
court  of  law  may  enter  into  equitable  objections,  senible,    242 
so  if  a  purchaser  brings  an  action                                       243 
on  breach   of  contract,  cannot  be  brought  by  a  purchaser 

without  tendering  the  conveyance  and  purchase-money   246 
unless  the  vendor's  title  is  bad,  or  he  has  incapacitat- 
ed himself  to  perform  the  agreement  248 
cannot  be  brought  by  a  vendor,  without  having  executed  the 
conveyance,  or  otTered  to  do  so                                      245,  246 
See    Abstract.      Auctioneer.      Covenants    for 
Title.       Damages.       Interest.       Purchaser. 
Title.     Title-Deeds.     Vendor. 
ADVANCEMENT, 

purchase  by  a  father  in  the  name  of  his  child,  although  ille- 
gitimate, is  an  advancement  ii.  140,  141 
so  a  grant  of  copyholds,  successive,  to  children  as 

nominees  ii.  141 

if  the  father  be  a  papist,  incapable  of  purchasing,  the 

case  is  stronger  ib. 

but  the  child  must  be  unprovided  for  ii.  142 

or  must  be  considered  by  the  parent  as  unprovided 
for  ib. 

possession  by  the  father,  during  the  child's  infancy,  is  im- 
material ii.  143 
so  even  where  the  child  is  adult,  semble                       ii.  143 
the  parent  laying  out  money  in  repairs,  &c.  is  immaterial  ii.  144 
so  a  declaration  of  a  trust,  or  devise  by  the  father, 

subsequently  to  the  conveyance  ib. 

but  if  a  conveyance  to  a  son  is  for  a  particular 
purpose,  a  trust  will  result  to  the  father  ib. 

or  the  child  may  be  put  to  his  election  ib. 

purchase  by  a  father  in  the  joint  names  of  himself  and  child. 


INDEX.  431 

Pane 

ADVANCEMENT— coH/imtetZ 

although  an  advancement,  is  not  so  strong  a  case  as  the 
other,  qu.  ii.  144,  145 

where  the  father  is  dead,  a  purchase  by  the  grandfather  in 

the  name  of  the  granchild  is  an  advancement  ii.  146 

purchase   by  a  husband   in  the  name   of  his  wife  is  an  ad- 
vancement ii-  147 
purchase  by  a  father  in  the  name  of  his  wife  or  child  is  void- 
able by  creditors,  where  ib. 
See   Evidence.      Purchaser.      Resulting 
Trust. 
ADVOVVSON, 

statement  in  the  particulars  of,  that  a  voidance  was  likely 
to  occur  soon,  not  binding  3,  4 

AGENT, 

the  extent  of  his  authority  46 

where  agency  established,  the   agent  will   be  compelled  to 

transfer  the  benefit  of  the  contract  to  his  principal  ib. 

if  the  seller,  for  a  valuable  consideration,  direct  his  agent 
to  pay  over  the  proceeds  of  the  sale  to  a  third  person,  he 
cannot  revoke  the  order  47 

where  an  agent  for  sale  of  an  estate  is  to  be  paid  a  percent- 
age on  the  sum  obtained,  he  cannot  recover  his  commis- 
sion until  the  money  is  received  by  the  principal  54 
cannot  buy  the  estate  of  his  principal                          ii.  109,  110 
employed   by  parol  to  buy  an  estate,  and  paying  all   the 
money,  cannot   be  compelled  to   convey  it  to  his  prin- 
cipal                                                                     ii-  132,  133,  139 
but  if  he  deny  the  agreement,  the  principal    is  a  competent 

witness  to  prove  the  perjury  »-  139 

who  is  a  sufficient  agent  within  the  statute  of  frauds  103 

estates  bought  by  an  agent  with  his  principal's  money  may 

be  followed,  where  "•  ^^® 

purchaser  must  not  pay  money  to  the  agent   of  the  vendor 

before  the  time  appointed  ^  * 

his  authority  may  be  revoked,  when  105 

when  not 
effect  of  his  evidence  against  his  signature  as  agent  105 

107 
must  be  a  third  person 

payment  of  deposit  by  an  agent  tor  a  purchaser,  may  be  re- 
covered by  the  latter,  where 

See  Attorney.       Auctionfeh.      Evidence. 
Notice. 


432  INDEX. 

Page 

AGREEMENTS, 

where  parties  compelled  to  produce  them  241 

where  not  necessary  to  prove  the  execution  by  the  sub- 
scribing witness  242 
will  be  enforced  in  equity, 

against  the  heir  at  law  of  a  vendor  191 

will  be  enforced  in  equity,  &c. 

against  equitable  issue  in  tail,  where  there  has    been 

a  decree  in  the  ancestor's  life-time,  semble  193 

a  widow  entitled  to  free  bench,  where  196 

the  survivor  of  joint  tenants,  where  197 

a  husband  who  has  covenanted   to  sell   his  wife's 

estate,  where  198 

a    person    becoming    lunatic    after    the    contract, 

where  200,  201 

a  person  entitled,  in  default  of  execution  of  a  po- 
wer of  sale,   where  a  legal    contract   has    been 
made  under  the   power,  and  the   power  is  extin- 
guished by  the  deaths  of  parties  201 
although  the    agreement  is  by  parol,  where,  and    where 

not  108.  125 

the  court  reluctant  to  carry  parol  agreements  into  execu- 
tion, on  the  ground  of  part  performance,  where  the 
terms  do  not  distinctly  appear  130 

the  vendor  or  vendee  become  bankrupt  171 

the  vendor  or  vendee  be  dead  172 

the  purchaser  is  a  nominal  contractor,  where,  and 

where  not  210 

void  at  law,  where,  and  where  not  212,  213 

a  penalty  be  imposed  214,  216 

the  estate  is  destroyed,  where  277 

the  consideration,  being  contingent,  has  failed,  where  279 
the  vendor  has  not  the  interest  which  he  pretended 
to  sell,  or  a  title  to   the  whole  estate,  where,  and 
where  not  287.  301 

the  purchaser  knew  that  the  seller  could  not  grant 

the  whole  interest  sold,  semble  299 

the  estate   is  freehold,  and  was  sold  as   copyhold, 

where  298 

the  estate  be  defective,  where,  and  where  not  307 

will  not  be  enforced  in  equity 

against  issue  in  tail,  where  no  fine  or  recoverv  391 


I 


INDEX.  433 

AGREEMENTS-con/«med.  ^^^^ 

a  widow  entitled  to  dower  196 

a  feme  covert  ib. 

an  infant  201.  208 

where  an  agent  has  sold   the  estate  in  a  manner  not  au- 
thorized by  his  authority  206 
an  agent  has  committed   a  gross  breach  of  trust  to 
his  principal  in  the  sale  ib. 
so  of  a  trustee                                                           206 
when  made  in  a  state  of  intoxication                                     203 
where  the  seller  has  turned  the  purchaser  out  of  posses- 
sion given  according  to  the  contract  ib. 
where  it  would  be  particularly  hard  on  the  party  against 

whom  it  should  be  decreed  204 

there  has  been  suppressio  veri  or  suggeslio  falsi      205 
there  has  been  a  surprise  ib. 

a  bad   title  is  shown,  even  after  the  right  to  call 

for  the  title  is  waived  225 

a  vendor   has  industriously  concealed   a   patent 
defect  2.  318 

or  not  disclosed  a  latent  defect  2.  313 

or  was  not   bondjide  owner  of  the  estate  at 

the  time  of  the  contract  207 

or  although  a  bond  fide  contractor,  yet  can- 
not make  a  title  208 
the  remedy  is  not  mutual  ib. 
the   purchaser  can  obtain   only  an  undivided  part 

of  the  estate  contracted  for  297 

the  estate  is  leasehold   or  copyhold,  and  the  pur- 
chaser contracted  for  freehold  298 
general    rules  by  which    equity  is    guided    in    granting 

a  specific  performance  201 

to   purchase    and    settle  an  estate,  what  is    a    perform- 
ance "•  ISO 
to  grant  a  lease,  where  binding  on  a  purchaser       ii.  270,  271 
to  provide  a  purchaser  for  an  estate,  how  performed  53 
in  the  hands  of  one  party  may  be  obtained  by  the  other 

to  stamp  it  ^^^ 

where  there  is  only  one  part  of  the  agreement  executed, 

it  must  be  produced  on  an  action  'b- 

a    contract    for    purchase    not    altered    by    a    stipulation 
that    the    purchaser   shall  be    deemed    a    tenant  to  the 
VOL.   II.  55 


434  INDEX. 

Page 

AGREEMENTS— coNiiwwed 

seller  at  a  rent  equal  to  the  interest  of  the  purchase- 
money,  and  the  seller  has  power  to  distrain  216 
See    Consideration.      Covenants.      Pur- 
chaser.     Statute    of    Frauds.     Time. 
Title.     Vendor.      Voluntary    Convey- 
ance. 

ALIEN, 

can  only  purchase  for  the  benefit  of  the  king  ii.  106 

unless  he  be  made  a  denizen  ib. 

AMBIGUITIES, 

may  be  explained   by  parol   evidence,  where,   and  where 
not  161, 162.  160 

ANNUITY, 

grantor  of,  not  bound  to  lay  open  all  the  circumstances  of 

his  situation  to  the  interested  grantee  8 

estate  sold  for  an  annuity  must  be  secured,  how,  where   no 

agreement  250 

estate  sold  for  a  life   annuity  must  be  conveyed  to  the  pur- 
chaser, although  the  annuitant  dies  before  the  convey- 
ance, where  280 
life,  sold,  price  must  be  paid,  although  the  annuitant  be 

dead  284 

an  agreement  for,  during  three    lives,  will    be  enforced, 
though  the  lives  were  not  named,  if  the  seller  occasion- 
ed the  delay  212 
act  considered                                                                        ii.  226 
lands  charged  with  annuities  continue  liable  in  the  hands  of 

a  purchaser  ii.  39 

purchaser  of,  from  what  time  to  receive  it  ii.  9 

See  Incumbrances. 
APPOINTMENT, 

must  be  registered  under  the  registry  act  ii.  211 

See  Power. 
APPRAISEMENTS, 

duties  on  54 

ASSETS.     See  Executor.     Purchase  Money. 

freehold  and  copyhold  estates  made,  for  payment  of  simple 
contract  debts  528 

ASSIGNEES  OF  BANKRUPTS, 

a  mere  attempt  to  sell  a  lease  by  auction,  will  not   make 
them  chargeable  as  assignees  52 


INDEX.  435 

ASSltiNEES  OF  BANKRUPTS— con/muerf.  ^*^^ 

their  acceptance  of  a  lease  relieves  the  bankrupt  52 

buying    in    an     estate    without    authority,  are    personally 

bound  -73 

must  make  the  same  title  as  vendors  sui  juris  367,  368 

must  make  good  a  covenant  for  further  assurance,  although 
the  bankrupt  was  tenant  in  tail,  and  did  not  suffer  a 
recovery  ii.  103 

cannot  purchase  the  bankrupt's  estate  ii.  109 

and    such   a    purchase  is    a  sufficient    cause  of  re- 
moval ib.  n. 
assignee   permitting  his  co-assignee  to  buy  the  estate, 
f-                                    is  a  sufficient  cause  of  removal  ib.  n. 

See  Auction.     Lien.     Time,     Title. 
ASSIGNMENTS  OF  TERMS.     See  Terms  of  Years. 
ATTESTED  COPIES, 

the  expense  of  them  should  be  provided  for  on  sales  38 

should  be  taken  of  the  parcels,  where  the  estate  is  sold  in 

lots  53 

what  attested  copies  must   be  furnished  to  the  purchaser 

by  the  vendor  529 

semble,  that  an   agreement  to  produce   the   title-deeds  will 

not  bar  the  purchaser  of  his  claim  to  attested  copies  ib. 

vendor  must,  at  his  own  expense,  furnish  the  purchaser  with 
a  covenant  to  produce  the  deeds  ib. 

and  a  purchaser  is  entitled  to  see  the  deeds  ib. 

purchaser  obtaining   possession  of  the  deeds,  may  re- 
tain them,  where  631 
purchaser  will  be  obliged  to  take  copies  if  the  deeds 
are  lost,  where  ib. 
ATTORNEY, 

if  an  attorney  sell  an  incumbered  estate  without  disclosing 

the  incumbrance,  he  is  responsible  to  the  purchaser  7 

the  vendor's  attorney  should  not  be  employed  by  the  pur- 
chaser 8 
tlie  attorney  of  the  grantor  of  an  annuity  employed  by  the 
grantee  to  prepare  the  deeds,  not    bound    to  do  more 
than  his  principal                                                                         ib. 
should  attend  to  what,  in  examining  abstracts                        9,  n. 
bidding  beyond  his  authority  will  himself  be  liable                    46 
but  not  unless  he  be  limited  as  to  price                                 ib. 
has  what  remedy  where  the  principal  denies  the  autliority     ib. 


436  INDEX. 

Page 

ATTORNEY— co«/im(e£/. 

buying  in  an  estate   witliont  authority  is  personally  bound     72 

cannot  buy  from  his  client  whilst  the  relation  subsists       ii.   112 
but    he   is    not    incapable    of    contracting    with    his 
client  ii.  120,  121 

how  he  should  execute  an  agreement  for  sale  of  the  prin- 
cipal's estate  63 

is  answerable  to  his  client  in  case  of  neglect  552 

purchaser  not  bound  to  take  a  conveyance  executed  by 
attorney  461 

vendor  not  compellable  to  execute  by  attorney  ib. 

to  a  commission  of  bankruptcy  cannot  purchase  the  bank- 
rupt's estate  ii.  109,  110 
where  he  cannot  give  evidence  against  his  client  ii.  298,  299 
See  Agent.     Evidence. 
AUCTIONEER, 

ought  not  to  prepare  particulars  of  sale  12 

may  deduct  auction  duty  out  of  money  received,  or,  other- 
wise, recover  it  by  action  18 

must  pay  the  duty  himself  if  he  undertake  to  give  proper 
notices,  &c.  and  neglect  it  21 

not  permitted  to  make  verbal  declarations  in  the  auction 
room,  contrary  to  the  printed  conditions  of  sale  31 

may  demand  payment  of  the  duty  from  the  purchaser, 
where  payable  by  him  44 

cannot  give  credit  for  the  purchase-money  46 

should  keep  the  deposit  till  the  contract  be  completed  47 

an  action  will  lie  against  him  for  recovery  of  the  deposit  ib. 

so,  for  damages  on  breach  of  contract,  unless  he  dis- 
close the  name  of  his  principal  ib, 

may  file  a  bill  of  interpleader,  and  pray  an  injunction,  if 
both  parties  claim  the  deposit  ib. 

is  not,  generally,  liable  to  pay  interest  on  a  deposit       49.  ii.  14 

liable  to  damages  on  breach  of  contract,  unless  he  disclose 
the  name  of  his  principal  49 

if  interest  is  recovered  from  him,  and  he  is  not  in  fault,  he 
may  recover  from  the  vendor  ii.   14 

is  not  liable  to  expenses  of  investigating  title  2  59 

is  not  entitled  to  compensation  for  his  services,  if  he  omit 
usual  clauses  in  the  conditions  of  sale,  whereby  the  sale 
is  defeated  49 

may  safely  pay  the  proceeds  of  the  sale    to  his   principal, 


INDEX.  437 

AVCTlONiZER— Continued.  ''°° 

although  the  latter  is  to  his  knowledge  in  insolvent  cir- 
cumstances 49 
is  an  agent  for  the  vendor  and  purchaser  within  the  statute 
of  frauds                                                                                      105 
although  the  purchaser  bid  by  an  agent                             107 
his  clerk  is  an  agent  for  both  parties  ib. 
cannot  buy  the  estate  himself                                       ii.  109,  110 
See  Auction.     Auction  Duty.     Bidding. 
Damages.     Deposit.     Interest. 
AUCTION  DUTY, 

of  seven  pence  in  the  pound  is  payable  in  respect  of  monies 

produced  by  sale  of  estates  by  auction  13 

not  payable  in  respect  of  what  estates  13,  14,  15 

not  payable  if  estate  be  bought  in,  by,  or  by  the  order 

of  the  vendor  18 

or  by,  or  by  the  order  of  his  agent  ib. 

but  proper  notices  must  be  given  •  19 

payable  although  the  sale  is  not  by  regular  auction  ib. 

whenever  the  highest  bidder  is  to  be  the  purchaser  ib. 

will  be  allowed,  if  the  vendor's  title  prove  bad  22 

where  commissioners  of  excise  bound  to  put  a  liberal  inter- 
pretation on  the  act  ib. 
and  the  purchaser  can  recover  the  duty  he  has  paid  from 

the  vendor,  if  the  title  be  bad  45 

vendor  may  stipulate  that  the  duty  shall  be  paid  by  the  pur- 
chaser 44 
payment  of  duty,  not  a  part  performance  of  a  parol  agree- 
ment                                                                                   124,  125 
where  purchaser  will  be  compelled  to  pay  interest  upon  it,      ii.  7 
See  Auctioneer.     Bidding.     Conditions 
OF  Sale. 
AUCTION, 

Dutch,  how  conducted  25,  n. 

sales  by,  vitiated  by  the  employment  of  puffers  27,  28 

estate  advertised  to  be  sold  by  auction,  should  not  be  sold 
by  private  contract,  without  sufficient  notice  can  be  given 
to  the  public  45 

putting  up   an  estate   by  auction,  will  not  charge  assignees 

of  a  bankrupt  as  owners  of  it  61,  52 

sales  of  estates  by  auction  are  within  the  statute  of  frauds 

108,  109 
contra  of  goods,  semble  ib. 


438  INDEX. 

Page 

AUCTION— co»/mMed. 

See  Assignees  of  Bankrupts.     Condi- 
tions OF  Sale.     Deposit. 
BANKRUPT, 

sales  of  bankrupts'  estates  not  liable  to  auction  duty  15 

where    purchaser,  cannot  compel  a  performance  of  the  es- 
tate to  him  343 
where  vendor,  cannot  compel  the  purchaser  to  take  the 

title  ib. 

purchase  by,  in  the   name  of  a  wife  or  child,  is  within  the 
statute  of  James  ii.  146,  147 

See    Agreements.      Assignees    or    Bank- 
rupts.    Commissioners  of  Bankrupts. 
Covenants,     Judgments.     Titles. 
BANKRUPTCY,  ACT  OF, 

will  not  discharge  a  contract  for  a  sale  171 

nor  an  action  for  Breach  of  covenant  for  title  ii.  104 

will  prevefft  the  execution  of  an  agreement  if  no  commis- 
sion is  issued  172.  343 
will  affect  a  purchaser,  where                                ii.  183.  185.  189 
See  Assignees  of  Bankrupts.     Notice. 
BANKRUPTCY,  COMMISSION  OF.     See  Attorney.     Notice. 
BANKRUPT,  ASSIGNEES  OF.     See  Assignees  of  Bankrupts. 
BANKRUPTS,  COMMISSIONERS  OF.     See  Commissioners  of 

Bankrupts. 
BARON  AND  FEME, 

estates  purchased  by  husband  with  the  wife's  separate  mo- 
ney, may  be  followed,  where  ii.  148,  149 
what    is   a   good    consideration    for   a     settlement     on    a 

wife  ii.  161 

purchase  by  a  trader  for  his  wife,  where  fraudulent  against 

creditors  ii.  145 

husband  must  perform  the   marriage  agreement  before  he 
can  claim  the  benefit  of  it  ii.  294 

purchaser  of  the  consideration  for  the  settlement  by 

the  wife  is  bound  also  ii.  295 

See  Advancements.     Agreements. 
BIDDING, 

dumb  bidding  is  within  the  auction-duty  acts  20 

semble,  putting  up  an  estate  and   no  person  bidding, 
is  not  20,  21 

of  so  much  per  cent,  more  thau  has  been  oflered  is  binding     20 


•  INDEX.  439 

Page 
BWBING— continued, 

private  bidding  on  the  part  of  the  owner,  not  fraudulent 

where  there  are  real  bidders  26.  29 

unless  more  than  one  bidder  is  employed,  semble,  27,  28 

qu.  if  appointment  of  one  puffer  is  in  any  case  good  28 

if  the  advertisements  state  that  the  estate  will  be  sold  loith- 

out  reserve,  the  sale  will  be  void  if  a  puffer  bid  29 

meaning  of  the  words  "  without  reserve"  ib. 

may  be  countermanded  before  the  lot  is  knocked  down  43 

by  a  purchaser  void,  unless  he  pay  the  auction  duty  when 
payable  by  him  44 

See  Attorney.     Auction  Duty.     Sales 
BEFOKE  A  Master. 
BILL  OF  EXCHANGE, 

for  purchase-money  given  by  a  purchaser  at  a  day  certain 
must  be  paid,  although  the  seller  refuse  to  convey  246 

BREACH  OF  CONTRACT, 

remedies  for  '216 

notice  of  intention  to  rescind  contract,  when  to  be  given  ib. 

CAVEAT  EMPTOR, 

where  the  rule  applies  30L  307.  313 

CHANCERY.     See  Sales  before  a  Master. 
CHAMPERTY, 

what  is  not  562 

CHARITABLE  USES, 

will  not  affect  a  purchaser,  without  notice  ii.  182 

unless  he  bought  of  a  person  who  had  notice  ib. 

CHARITY.     See  Devise. 
CHOSE  IN  ACTION, 

purchaser  of,  must  abide  by  the  case  of  his  vendor  ii.  264 

semble,  that  a  purchaser  of  a  chose  in  action,  or  of  any 
equitable  right,  giving  notice  to  the  trustee,  will  be  pre- 
ferred to  a  prior  purchaser,  who  gave  no  notice    11.  ii.  264 
CHURCHWARDENS, 

can  purchase  a  workhouse  ii.  105, 106 

"  CLEAR"  YEARLY  RENT, 

what  it  is  37 

COLLATERAL  SECURITY, 

purchaser  not  affected  by  taking  it,  unless  the  first  purchase 
was  fraudulent  ii.  260 

COMMISSIONERS  OF  BANKRUPTS, 

cannot  buy  the  bankrupt's  estate  ii.  109 


440  INDEX.  • 

Page 

COMMISSION  OF  BANKRUPTCY, 

if  superseded,   a  purchaser's  deposit  will  be  returned  on 

petition  "73 

not  superseded  even  for  fraud,  where  there  are  purchasers 
under  it  724 

COMPENSATION, 

an  agreement  will  be   decreed  to  be  performed  pro  tanio 

with  a  compensation,  in  what  cases  287.  291.  300.  319 

for  a  reversion  outstanding,  impossible  290 

a  right  of  sporting  reserved  over  an  estate  not  a  subject 

for  300 

purchaser  entitled  to,  for  a  deficiency  in  quantity,  in  what 

cases  318 

bill  for,  will  not  lie  after  purchase-money  paid  565 

CONCEALMENT, 

where  it  amounts  to  a  fraud  205.  260.  307.  564 

CONDITIONS  OF  SALE, 

cannot  be  verbally  contradicted  31 

estate  cannot  be  too  minutely  described  in  34 

although  the  purchaser  bind  himself  to  abide  by  the  dec- 
larations made  at  the  sale  32 
unless  the  purchaser  have   personal  information  given  to 
him  33 
how  construed  30 
pasted  up  in  sight,  will  bind  a  purchaser,  where  33 
what  provision  should  be  inserted  therein                                   34 
statement  that  the  property  is  in  lease,  binds  the  purchaser 

to  the  covenants  in  the  lease  36 

if  misrepresentation,  purchaser  entitled  to  a  compensation       37 
condition  that  any  mistake  in  the  description  of  the  estate, 
&c.  shall  not  annul  the  sale,  will  only  guard  against  unin- 
tentional errors.  41, 42 
See  AusTioN.     Auctioneer.    Auction  Duty. 
Bidding.     Mistake. 
CONFIRMATION, 

what  requisite  to  make  it  binding  ii.  126 

CONSIDERATION, 

unreasonable,  no  ground  to  refuse  the  aid  of  equity        257,  258 
inadequate,  where  a  bar  to  the  aid   of  the  court,  and  where 

not,  when  the  contract  is  executory  259 

inadequate,  a  ground  of  relief  when  the  conveyance  is  exe- 
cuted, in  what  cases  261 


7 

I 


I  N  n  E  X.  44 1 

Page 
CONSIDERATION— ro«/«iMerf. 

inadequate,  a  ground  for  relief,  where  the  vendor  is  an  heir, 

selling  an  expectancy  263 

the  rule  as  to  the  consideration  on  sale   of  reversions  does 
not  extend  to  a  sale  by  auction  272 

nor  to  a  sale  by  tenant  for  life  and  remainder-man  ib. 

contingent,  agreed  for,  the  estate  belongs  to  the  purchaser, 

although  the  consideration  fails  before  the  conveyance        277 
the  rule  does  not  extend  to  evidence  of  the  title  to  the 

property  278 

what  is  deemed  valuable  to  support  a  settlement  against  a 

subsequent  purchaser  ii.  161 

price  fixed  by  a  referee,  good,  where  274 

agreed  to  be  fixed   by  valuation  generally  will   be  enforced, 
although  no  valuation  be  made  ib. 

but  where  particular  persons  are  appointed,  the  agree- 
ment is  void,  unless  they  act  275 
and   equity  cannot  relieve,   although   one  of  the 
parties  die  before  the  award  ib. 
how  payment  thereof  must  be  pleaded                                   ii.  305 
See   Agreement.      Annuity.      Mahriage 
Consideration.     Purchaser.     Volunta- 
ry Conveyance. 
CONSTRUCTION  OF  THE  PARTIES, 

not  admissible  to  explain  an  instrument  166 

CONTINGENT  REMAINDERS, 

destruction  of,  discountenanced  by  equity  355 

but  title  depending  on,  good  ib. 

CONTRACT, 

the  equitable  consequences  of  it  171.  197.  261.  274.  277 

for  sale  of  an  estate,  converts  it  into  personalty  in  equity        186 
although  the  election  to  purchase  rests  with  the  pur- 
chaser ^^"^ 
unless  a  title  cannot  be  made,  or  equity  will  not  per- 
form the  contract  189 
when  deemed  complete  1^* 
See  Devise.     Purchaser. 
CONVEYANCE, 

it  should  be  stipulated  on  a  sale,  that  the  conveyance  shall 
be  prepared  by  and  at  the  expense  of  the  purchaser      39.  40. 

247 

must  be  prepared  and  tendered  by  the  purchaser,  although 

VOL.    II.  66 


442  INDEX. 

Pag*' 

CONVEYANCE— coHYm«e(L 

not  bound  to  prepare  it  by  the  agreement,  semble,      247.  447 
but  although  required  to  prepare  the  conveyance,  need 
not  do  so  if  title  is  bad  248 

the  expense  attending  the  execution  of  the  conveyance  falls 
on  the  vendor  460 

if  the  estate  be  copyhold,  the  purchaser  must  pay  for 

both  surrender  and  admission  ib. 

the  vendor  is  not  bound  to  pay  the  fine  although  he 
covenant  to  surrender  and  assure  the  copyholds  at 
his  own  expense  ib. 

the  vendor  must  himself  execute  the  conveyance   or 

surrender  the  copyhold  450 

the  vendor  is  not  compellable  to  convey  by  attorney       451 
of  an  estate   in  a  register  county  should   be  registered 

immediately  452 

purchaser  will  be  relieved  against  a  defective  convey- 
ance, where  ii.  264 
See  Terms  of  Years. 
COPYHOLDS, 

contracted  for,  devisable  before  surrender  174 

pass  under  a  general  devise,  if  surrendered,  although  bought 

after  the  will  which  is  not  republished  182 

sold  as  freehold,  cannot  be  forced  on  a  purchaser  298 

sold  with  a  stipulation  to  avoid  the  sale,  if  they  prove  free- 
hold, must  be  proved  to  be  copyhold  ibi. 
the  contents  of  the  court  rolls  not  notice                              ii.  296 
See  Conveyance. 
CORPORATIONS, 

cannot  purchase  for  their  own  benefit  without  licence         ii.  106 
sealing  by  them  is  equivalent  to  signing  and  sealing         ii,  208 
COSTS, 

by  whom  payable  in  equity  ii.  23 

COVENANTS, 

in  an  agreeement  for  purchase,  are  construed  dependent         244 
to  purchase  and   settle  an   estate,  what  amounts  to  a  per- 
formance of  it 
not  a  specific  lien  on  the  covenantor's  lands 
in  a  lease,  enure  to  the  benefit  of  a  purchaser 
COVENANTS  FOR  TITLE, 
purchaser  is  entitled  to  what 

run  with  the  land,  where,  and  where  not 
general,  do  not  extend  to  tortious  evictions 


ii. 

160 

ii. 

163 

252 

533 

77 

.  81 

ii 

.  82 

1  N  D  E  X.  443 

COVENANTS  FOR  TITLE— Conlimied.  ^'^° 

unless  the  wrong-doer  is  named  in  the  covenant  ii.  82 

or  the  covenantor  himself  is  the  wrong-doer  ib. 

or  the  covenant  is  against  dM  pretending  to  claim  ii.  84 

will  not  be  restrained  on  slight  grounds  ii.  92 

may,  on  the  ground  of  mistake,  be  rectified  in 
equity  ii.  102 

covenant  for  right  to  convey,  extends  to  the  capacity  of 

the  grantor  u.  85 

limitcd,ho\v  construed  ii.  85.  91 

restrictive  icords  in   the  first  of  several  covenants,  having 
the  same  object,  extend  to  them  all  ii.  93 

but  where  the  first  covenant  is  unlimited,  it  will  not, 
in  general,  be  restrained  by  a  subsequent  limited 
covenant  ii.  98 

nor  will   a  preceding  general   covenant  enlarge  a  sub- 
sequent limited  covenant  ii.  100,  101 
and  where  the  covenants  concern  different  things,  they 
will  not  be  controlled  by  restrictive  words  added  to 
one  ii.  101 
purchaser  is  entitled   to  what  remedy  under  covenants  for 

title  ii.  102 

action  for  breach  of,  does  not  lie  against  devisee,  under 

the  statute  of  fraudulent  devises  ii.  104 

remedied  by  the  1  Will.  4,  c.  47  ib, 

purchaser  not  bound  to  give  notice  of  an  adverse  suit  to 
the  covenantor  ib. 

CREDITORS, 

consulted  as   to  the  mode  of  sale,  cannot  buy  the  property 

themselves  ,  ii.  109,  110 

having  taken  out  execution,  may  buy  the  estate  sold  under 

the  execution  ii.  HI 

guilty  of  laches,  caimot  follow  specific  legacy  in  the  hands 
of  a  purchaser  »»•  26G 

See  Advancement.      Purchase    Money. 
Trustees. 
CROSS  BILL, 

where  dispensed  with  230 

CROWN  DEBTS, 

whether  a  purchaser  can  protect  himself  agamst  them  by 

a  prior  legal  term  ^^^ 

simple  contract  crown  debts  do  not  bind  ^  bond  fide  pm- 


444  INDEX. 

Page 
CROWN  DEBTa—conlimied. 

chaser  without  notice  511  ii. 

of  protection  from,  under  1  &  2  Geo.  4,  c.  121  ii.  256 

DAMAGES, 

nominal   only,  can  be   recovered    for   breach  of  contract, 
where  the  vendor  cannot,  without  fraud,  make  a  title  235 

so  even  where  an  auctioneer  sells  an  estate,  after  his 
authority  has  expired,  and  the  principal  will  not  per- 
form the  contract  ib. 
sed  qn.  as  a  general  rule  ib. 
DECLARATION  OF  USES.     See  Fines. 
DECREES  OF  EQUITY, 

obtained  by  fraud,  reUeved  against  66.  ii.  267 

where  notice  to  a  purchaser  ii.  284 

See  Notice. 
DEFECTIVE  CONVEYANCE.     See  Conveyance. 
DEFECTIVE  EXECUTION.     See  Power. 
DEMURRER, 

lies  to  a  bill  for  a  specific  performance  against  distinct  pur- 
chasers ,  229 
DENIZEN.     See  Alien. 
DEPOSIT, 

should  be  retained  by  the    auctioneer  till  the  contract  is 

completed  47 

if  ordered  to  be  paid  into  court,  it  will  be  after  deducting 

the  auctioneer's  expenses  ib. 

is  a  part  payment  49 

lost  by  the  insolvency  of  the  auctioneer,  who  shall  bear  the 

loss  48 

purchaser  may  forfeit  his  deposit,  and   abandon   the  con- 
tract, where  71 
an  investment  of  a  deposit  in  the  funds  will  be  binding  on 

a  vendor  or  purchaser,  where  50 

if  a  vendor  accept  less  than  the  deposit,  he  cannot  after- 
wards object  to  it  51 
purchaser  will  be  relieved  against  a  forfeiture,  where  ib. 
if  a  purchaser's  bill  for  specific  performance  be  dismissed, 

the  court  cannot  order  the  deposit  to  be  returned  ib. 

but  if  the  seller's  bill   be    dismissed,  the  court  will  compel 

him  to  repay  the  deposit  and  with   interest,  where  proper     ib. 
where  the  purchaser  not  allowed  to  recover  the  deposit,  al- 
though the  title  had  not  been  made  out  64 


INDEX.  445 

DEPOSIT — continued. 

paid  by  an  agent  for  a  purchaser,  may  be  recovered  by  the 

latter,  where  234 

a  purchaser  is  entitled  to  interest  on  his  deposit  238 

of  the  title-deeds  by  a  settler  after  a  voluntary  settlement, 
J  will  not  prevail  at  law  against  the  settlement  ii.  160,  161 

See  Action.     Auctioneer.     Interest. 
i  Sales  before  a  Master. 

DESCENT, 

alteration  in  the  law  of,  how  effected  by  stat.  3  &  4  Will.  4, 
c.  106  370,  371 

DESCRIPTION  OF  AN  ESTATE, 

false  310 

DEVISEE, 

of  an  estate  contracted  for,  not  entitled  to  the  estate,  or  the 
purchase-money,  if  a  title  cannot  be  made  188 

contra,  if  an  estate,  not  contracted  for,  is  by  a   will 
directed  to  be  bought  190 

not  liable  to  an  action  of  covenant  under  the  statute  of 
fraudulent  devises  ii,  104 

DEVISE, 

estates  contracted  for  may  be  devised,  whether  freehold 
copyhold  174 

will  pass  by  will,  where  176 

will  not  pass,  where  ib. 

of  an  estate  under  a  contract  for   sale  to  be  sold  for  a 

charity,  valid  173 

of  an  estate  contracted  to  be  sold,  by  a  will  made  subse- 
quent to  the  contract,  gives  what  interest  to  the  devisee      186 
of  a  term  is  revoked  by  the  purchase  of  the  fee  175,  176 

of  an  equitable  estate,  not  revoked  by  a  subsequent  con- 
veyance to  the  devisor  176,  176 
unless  to  different  uses  179 
and  then,  although  the  contract  was  by  parol  ib. 
revoked  by  a  contract  for  sale                                                    183 
unless  equity  will  not  perform  the  contract,  semblc         184 
where  the  agreement  is  abandoned,  qu.                             185 
See  Will. 
DEVISE,  EXECUTORY, 

its  utmost  limits  App.  n.  ii.  365 

DILAPIDATIONS, 

where  purchaser  entitled  to  allowance  for  ii.  23 


446  INDEX. 

DISCOVERY,  "^' 

purchaser  will  not  be  compelled  to  discover  writings,         ii.  260 
DISTRESS, 

lies  for  rent  reserved  upon  a  lease  of  freehold  or  leasehold, 
where  there  is  a  reversion  252  n. 

DOWER, 

how  affected  by  statute  3  &  4  Will.  4,  c.  105  364 

a  purchaser  is  entitled  to  a  fine  in  respect  of  it,  where,  and 

where  not  358 

not  barred  by  a  jointure  made  without  the  wife's  privity         359 
equitable  bar  of,  what  is  262 

bar  of  d'jwer  no  bar  of  thirds  ib. 

purchaser  can  protect  himself  against  dower  by  a  prior 
legal  term  618 

unless  it  was  privately  created  just  before  marriage         520 
wife  joining  in  barring  her  dower,  is  a  valuable  consideration 
for  a  settlement  on  her  ii.  167 

EJECTMENT.     See  Mortgage. 
ELECTION.     See  Advancement.     Heir  at  Law. 
ELEGIT, 

leasehold  estates  may  be  extended  on  an  ii.  199 

EXTENT, 

sale  under,  where  a  good  title  cannot  be  made  73 

EQUITY, 

after  a  bill  for  a  specific  performance  is  filed,  the  court  will 
enjoin  either  party  not  to  do  any  act  to  the  injury  of  the 
other  217 

and  agents  to  the  parties,  if  such  agents  are  parties  to  the 
suit  ib. 

not  otherwise  ib. 

will  give  a  purchaser  compensation  for  breach  of  the  agree- 
ment, where  230,  231 
protects  purchasers  bona  fide  and  without  notice  ii.  268 
See  Sales  before  a  Master,  and  passim. 
EQUITY  OF  REDExMPTION.     See  Mortgage. 
ESCHEAT.     See  Terms  of  Years. 
ESCROW  vide  note  p.  256. 
EVIDENCE,  PAROL, 
admissible,  where : 

to  prove  a  consideration  consistent  with  the  deed  132 

so,  as  a  defence  to  a  bill  seeking  a  specific  performance 
on  the  ground  of  fraud,  mistake  or  surprise  137 

or  to  explain  latent  ambiguities  152 


INDEX.  447 

EVIDENCE,  PAROL— continued.  ^*^^ 

or  the  meaning  of  ancient  instruments  167 

or  to  show  what  is  parcel  or  not,  of  the  thing  conveyed  152 

or  to  explain  a  mistake,  where,  and  where  not  158.  165 

or  on  the  ground  of  fraud  167 

or  to  correct  a  settlement  made  contrary  to  the     intention 

of  the  parties,  merely  to  prevent  a  forfeiture  165,  166 

to  prove  a  resulting  trust  ii.  135 

even  after  the  death  of  the  nominal  purchaser  ii.  136 

to  rebut  a  resulting  trust,  or  any  equitable  presumption 

ii.  138,  139 
'    not  admissible,  where  : 

to  disannul  or  vary  a  written  agreement  132 

nor  to  correct  printed  conditions  of  sale  134.  136 

■the  rules  are  the  same  in  equity  135 

not  even  as  a  defence  to  a  specific  performance,  if  the 

agreement  was,  at  the  time,  correctly  reduced  to  writing  142 
nor  of  collateral  matters,  although  not  mentioned  in  the 

agreement  143.  145 

nor  of  the  variation  of  an  agreement  ib. 

nor  of  the  discharge  of  a  written  agreement,  except  as  a 
defence  in  equity  146.  151 

unless  the  parol  agreement  has  been  in  part  performed    ib. 
nor  to  explain  a  patent  ambiguity  162 

as  the  meaning  of  a  word  in  a  deed  ib. 

or  act  of  parliament  163 

nor  to  restrain  general  words  165 

nor  of  the  construction  of  the  parties  167 

nor  where  parties  have  omitted  a  provision,  deeming  it 
illegal  166 

where  a  man  purchases  in  the  name  of  a  stranger,  the  evi- 
dence to  rebut  the  resulting  trust  lies  on  the  nominal  pur- 
chaser ii.  138 
contra,  where  the  purchase  is  in  the  name  of  a  child  ii.  141 
principal  is  a  good  witness  to  prove  the  perjury  of  his  agent, 

Mhere  ii.  139 

agent  not  a  good  witness  against  the  principal  ii-  298 

what  is  sufficient  evidence  of  notice  in  equity  ib. 

See  Witness. 
EXECUTION.     See  Judgments. 
EXECUTOR, 

cannot  mortgage  the  assets  for  hi^ private  debt  ii.  64 


448  INDEX. 

Page 

EXECUTOR— coniinned. 

his  receipt  is  a  discharge  for  the  purchase-money  of  lease- 
hold estates  ii.  51 
estates  bought  by  an  executor  with  the  assets,  cannot  be 
followed,  unless  the  trust  appear  on  the  deed,  or  the  ap- 
plication of  the  money  is  clearly  proved                             ii.  148 
See  Purchase-Money. 
EXPENSES, 

of  investigating  a  title,  &c.  may  be  recovered   where  the 

vendor  cannot  make  a  title  238 

of  the  conveyance  fall  on  the  purchaser,  who  prepares  it         450 
attending  the    execution  of  the  conveyance,  always  borne 
by  the  vendor  ib. 

but  not  the  costs  of  the  purchaser's  attorney  ib. 

FALSE  DESCRIPTION.     See  Fraud.     Value. 
FATHER  AND  CHILD.     See  Advancement. 
FELONS, 

can  purchase,  but  not  hold  ii.  106 

See  Terms  of  Years. 
FEME  COVERT, 

can  only  purchase  sub  modo  ii.  107 

unless  authorized  by  her  husband  ib. 

is  answerable  in  equity  for  a  fraud  ii.  262 

FINES, 

abolished  by  stat.  3  &  4  Will.  4,  c.  74  380.  ii.  273 

terms  of  years  barred  by,  where  453 

See  Copyholds.     Dower.     Power.     Title. 
FIRE, 

loss  by,  after  the  contract,  must  be  borne  by  the  purchaser     277 
contra,  where  the  estate  is  sold  before  a  master,  and 
the  report  is  not  absolutely  confirmed  278 

FIXTURES, 

purchaser  where  entitled  to  38 

FRAUD, 

if  persons,  having  a  right  to  an  estate,  encourage  a  pur- 
chaser to  buy  it,  they  will  be  bound  by  the  sale  ii.  262 
if  even  a  stranger  make  a  false  representation  to  a  purcha- 
ser of  value,  &c.  an  action  will  lie  against  him  5 
mere  suspicion  of,  will   not  enable  a  purchaser  to  reject  the 

title  352 

in  a  written  agreement  relieved  against,  according  to  parol 
evidence  169 


INDEX.  449 

FRAUD — continved. 

See  Concealment.     Dower.     Evidence. 
Incumbrances.     Statute  of  Frauds. 
FRAUDULENT  CONVEYANCE, 

settlement  with  general  power  of  revocation,  void  against  a 
purchaser  ii.  180 

See  Voluntary  Conveyance. 
GOODS.     See  Leasehold  Estates. 

GRANDFATHER  AND  GRANDCHILD.      See  Advancement. 
GUARDIAN, 

cannot  purchase  his  ward's  estate  on  his  coming  of  age, 
serable  ii.  116 

HEIR, 

relieved  against  a  sale,  for  an  inadequate  consideration  263 

HEIR  AT  LAW, 

bound  by  his  ancestor's  contraot,  although  he  die  before 
the  time  limited  for  completing  it  171 

unless  the  devisee  permit  the  heir  to  take  the  estate  for 
a  long  time  177 

what  should  be  attended  to  in  purchasing  an  estate  of  an 
heir  at  law,  conveyed  or  surrendered  to  his  ancestor 
after  his  will  1S2 

will   be  entitled   to  lands  contracted  for  by   his  ancestor, 

where  179.  189 

wrongfully  applying  the  personal  estate  in  paying  the 
purchase-money,  gives  the  persons  entitled  a  charge  on 
the  land  ISO,  181 

may  be  put  to  his  election,  although  the  testator  had  not 

the  estates  at  the  time  of  his  will  181 

whether  an   infant  heir  at   law  was  a  trustee  within   the 
7  Anne   for  a   purchaser,  under  a  contract   by  the  an- 
cestor ^f^ 
alteration  of  the  law  by  1  Will.  4,  c.  60  ib. 
purchaser  will  be  compelled  to  take  a  title,  although  a  will 
is  not  proved  against  the  heir  at  law                              369,  370 
See  Agreements. 
HUSBAND  AND  WIFE.     See  Bakon  and  Feme. 
IDIOTS, 

can  only  purchase  sub  modo  "•  1^' 

IMPROVEMENTS, 

purchaser    will    be   relieved     in    respect    thereof,    m    what 

ii.  266,  267 
cases  ' 

INADEQUATE  CONSIDERATION.     See  Consideration. 

VOL.    II.  ^'^ 


460  INDEX. 

Page 

INCLQSURE, 

title  under  an,  before  the  award  342 

commissioners  cannot  purchase  until  five  years  after  the 
award  ii.  110  n. 

INCUMBRANCES, 

should  be  disclosed  to  a  purchaser  6 

a  person  having  an  incumbrance,  and  denying  it  to  a  pur- 
chaser, will  be  relieved  against  9.  ii.  263 
a  person  having  an  incumbrance  is  not  bound  to  give  notice 

of  it  to  a  purchaser  ib. 

purchaser  will  be  relieved  against  dormant  incumbrances  ii.  261 
judgments  should  be  searched  for  on  behalf  of  a  purchaser    539 
although  the  estate  is  leasehold  647 

purchaser   will  be   bound  by  judgments  of  which   he   has 
notice,  although  the  vendor  has  only  an  equity-  of  redemp- 
tion ,  541 
qu.  where  the  seller  has  only  a  trust  estate                      543 
but  where  the  estate  is  in  trustees  for  sale,  whose  re- 
ceipt is  a  discharge,  he  may  pay  to  them                       544 
purchaser  will  be  relieved  against,  where                                   553 
need  not  be  searched  for,  in  what  cases                           541.  549 
where  the  estate  is  in  a  register  county,  the  register  should 

be  searched  549 

register  need  not  be  searched,  in  what  cases  650 

if  the  estate  is  leasehold,  the  register,  and  also  the  proper 

courts,  should  be  searched  for  judgments  551 

annuities  should  be  searched  for  ib. 

solicitor  is  personally  responsible,  if  he  neglect  to  search 

for  incumbrances  552 

officers  neglecting  to  enter  up  judgments,  &c.  are  liable  to 

a  purchaser  sutlering  by  the  neglect  ib. 

purchaser  may  retain  or  recover  purchase-money  in  respect 
of  incumbrances,  or  defects  in  the  title,  where,  and 
where  not  653.  564 

purchaser  buying  up  incumbrances,  can,  as   against  the 

vendor,  only  charge  what  he  actually  paid  567 

where  two  persons  purchase  an  incumbered  estate,  and  an 
allowance  is  made  to  one,  it  enures  to  both  ii.  130 

See  Attorney.     Purchaser.     Purchase 
Money.     Vendor. 
INDEMNITY, 

to  a  purchaser  will  not  weaken  his  title  in  equity  ii.  260 


INDEX.  451 

INDEMNITY— continued.  ^^^ 

vendor  or  purchaser  will  be  compelled  to  give  or  accept  an 

indemnity,  in  what  cases  251.  288.  304.  344 

an  agreement  to  give  a  real  security,  as  an  indemnity,  must 
be  specifically  performed  251 

IJVFANTS, 

can  only  purchase  sub  modo  ii.  107 

are  answerable  in  equity  for  a  fraud  ii.  262 

See  Heir  at  Law.     Uower. 
INJUNCTION, 

in  what  cases  granted  216,  217 

will  not  be  dissolved  without  the  Master's  report  on  title, 
where  the  action  is  for  want  of  title  232,  233 

INSOLVENCY, 

loss  by  the  insolvency  of  the  auctioneer  falls  on  the  seller, 

semble  48 

what  is  ii.  188 

INTEREST, 

must  be  paid  by  a  purchaser  from  the  time  the  contract 
ought  to  be  completed  ii.  1 

unless  the  money  has  lain  dead,  and  the  purchaser 
gave  the  vendor  notice  of  the  fact,  and  the  delay 
be  occasioned  by  the  vendor  ii.  2 

where  a  purchaser  takes  possession  and  agrees  to  pay  inte- 
rest, he  may  rescind  the  agreement,  if  it  appear  that  a 
long  time  must  elapse  before  a  title  can  be  made,  unless 
he  acquiesce  in  the  delay  ii.  5 

is  not   to  be   paid  by  a   purchaser  after   the  conveyance  is 

delivered  to  the  vendor's  attorney  for  execution  ii.  7 

on  timber,  runs  only  from  the  valuation  ii.  8 

must  be   paid  by  a  purchaser  of  a  reversion,  from  what 

time  ii.  18 

must  be  paid  by  a  purchaser  of  a  leasehold  estate,  although 
he  has  not  received  the   rents,  and   the  vendor  must  pay  a 

rent  for  the  estate  ii.  9 

must  be  paid  in  respect  of  a  sum  deposited  with  a  purchas- 
er to  pay  off  incumbrances  ii.  13 
an  agreement  to  pay  interest,  although  signed  by  the  vendor 

only,  will  bind,  where  ii.  9 

a  purchaser  never  pays  interest  on  the  deposit  ii.  13 

can  be  recovered  by  a  purchaser  on  a  deposit   paid  either 

to  a  principal,  or  to  an  auctioneer  238.  ii.  16 

is  not  recoverable  against  an  auctioneer,  unless  under  par- 
ticular circumstances  •'•  1-1 


452  INDEX. 

INTEREST— eon /m?/e(/. 

if  recovered  against  an  auctioneer  he  may  recover  it  from 

the  vendor  ii.  1  6 

whether  it  can  be  recovered  in  an  action  for  money  had  and 

received,  qu.  238,  239 

must  be  paid   by  a  vendor  where  he  cannot  make  a  title,  if 
the  purchase-money  has  lain  dead  ii.  16 

so  by  a  person  opening  biddings  ii.  18 

must  be  allowed  to  a  trustee  where  a  purchase  by  him  of 

trust  property  is  set  aside  ii.  19 

an  agreement  by  a  purchaser  to  pay  a  rent  exceeding  legal 

interest  is  not  usurious,  where  ib. 

what  rate  of  interest  is  payable  ii.  20,  21 

in  what  cases  payable  under  the  stat.  3  &  4  W.  4,  c.  42     ii.  18 
See  Lessee. 
JOINT  PURCHASERS, 

their  rights  and  liabilities  ii.  127 

JOINT  TENANCY.     See  Agreements. 
JOINTURE.     See  Dower. 
JUDGMENTS, 

should  be  searched  for  539 

entered  up  after  the  purchase-money  is  paid  will  not  bind  in 

equity  ib. 

against  bankrupts  are  reduced  to  a  level  with  simple  con- 
tract   debts,  in  what  cases  ii.  196 
bind   an  equity  of  redemption  in  the  hands  of  a   purchaser 
with  notice  542 
qu.  as  to  trust  estate                                                         642,  543 
bind  after-purchased  estates  547 
do  not  bind  leasehold  estates  till  when                          547.  ii.  198 
do  not  affect  an  equity  of  redemption  of  a  term  548 
do  not  bind  real  estates  until  entered  and  docketed             ii.  193 
cannot  be  docketed  after  the  time  appointed  by  the  act      ii.  194 
in  what   cases    they  bind    purchasers    although  not  duly 

docketed  ii.  195 

may  be  defeated  by  a  purchaser  without  notice,  who  has  a 

prior  legal  estate  541 

where  a  purchaser  shall    have  contribution  in  respect  of 
.  execution  548 

See  Incumbrances.     Notice.     Register. 
LACHES.     See  Time.     Trustees. 
LAND  TAX, 

of  protection  from  defects  in  sales  for  redemption  of  land 
tax  ii.  249 


INDEX.  453 

LEASE,  *'*"° 

misrepresented,  purchaser  will  be  entitled  to  compensation, 

in  what  cases  289,  290. 

what  is  notice  of,  to  a  purchaser  ii.  291 

should  be  seen  by  a  purchaser  before  he  completes  ib. 

underlease  will   not  be  decreed    under  an  agreement    to 

assign  289,  290 

agreement    to    grant  a,  where  binding    on    a    purchaser, 

ii.  269,  270 
See  Assignees  of  Bankrupts.     Covenants. 
Purchasers.     Register.     Terms 
FOR  Years. 
LEASEHOLD  ESTATES, 

renewable,  what  is  a  sufficient  title  to  338 

where  assignments  of,  will  be  presumed  ib. 

may  pass  in  a  will  under  the  word  "  goods"  ii.  202 

but  cannot  pass  in  an  assignment  under  that  word        ib.  n. 
See  Incumbrances.     Interests.     Judgments. 
Purchaser.     Title.     Vendor. 
LEGATEE.     See  Marshalling. 
LESSEE, 

purchasing,  the  tenantcy  is  determined  173 

on  conveyance  of  the  inheritance,  the  covenants  between 

him  and  the  lessor  are  determined  176 

with  an  option  to  purchase,  rent  ceases  upon  declaring  the 

option,  and  interest  runs  ii.  110 

his  possession  is  notice  of  his  title  ii.  292 

but  not  of  the  lessor's  title  ii,  293 

LETTERS, 

are  agreements  within  the  statute  of  frauds,  where  87.  89 

LIEN, 

whether   any  exist    for   money  received    by  vendor  who 
is  entitled  to  retain  the  estate  by  the  death  of  the  pur- 
chaser without  heirs  284 
purchaser  has  a  lien  on  the  estate  for  money  paid,  if  vendor 

cannot  make  a  title  ii.  57 

purchaser  has  not  a  lien  on  the  purchase-money,  in  respect 
of  a  concealed  incumbrance,  afler  the  money  is  appro- 
priated by  the  vendor  665 
vendor  has  a  lien  on  the  estate  for  purchase  money  un- 
paid                                                                                         ii.  57 
even  where  the  agreement  provides  for  the  security 
of  the  purchase  money  during  the  purchaser's  life     ii.  57 


464  INDEX. 

Page 

LIEN — conlinued. 

unless  he  be  a  papist  incapable  of  purchasing  ii.  69 

or  take  a  distinct  security  for  the  money  ib. 

a  bond,  and   a  mortgage  of  part  of  the  estate  exclude 
the  lien  over  the  rest  of  the  estate  ii.  61 

but    taking  a  bond  or  note  will  not  discharge   the 
lien  ib. 

the  lien  extends  to  whom  ii.  67 

prevails  against  whom  ii.  74 

semble,  that  it  cannot  prevail  against  an  equitable 
mortgage  by  deposit  of  title-deeds  ii.  76 

LIMITATION  OF  TIME.     See    Statute    of  Limitations. 
LIS  PENDENS, 

the  effect  of  it  ii.  223.  281,  282,  283 

See  Notice. 
LOTS, 

estates  sold  in,  a  distinct  contract  arises  upon  each  293 

purchaser  of  several  lots  will  be  compelled  to  take  those 
to  which  a  title  can  be  made,  in  what  cases  29 1 

See  Stamps. 
LUNATICS, 

can  only  purchase  sub  modo  ii.  107 

See  Agreements. 
MARRIAGE  CONSIDERATION, 

valuable  ii.  161,  162 

whether  it  extends  to  collaterals  ii.  162 

MARSHALLING, 

the  vendor's  lien,  and  the  personal  estate  of  the  purchaser, 
will  be  marshalled  in  favor  of  a  legatee,  where  and  where 
not  ii.  69,  70 

assets  marshalled  against  the  devisee  in  favor  of  simple 
contract  creditors  ii.  73 

MASTER  IN  CHANCERY.  See  Reference.     Sales  before 

A  Master. 
MEMORIAL, 

of  deeds  to  be  registered  must  be  executed  in  the  presence 

of  what  witnesses  ii.  206 

deeds  cannot  be  re-executed  for  the  purpose  of  registry, 

semble  ii,  207 

sealed  by  a  corporation  is  equivalent  to  signing  and  seal- 
ing ii.  208 
should  contain  what  ib. 


INDEX.  455 

Pafe 

MEMORIAL — continued. 

of  giants  of  life  annuities  App.  No.  12.  ii.  326 

See  Register. 
MERGER, 

of  terms  for  years  in  the  tee  460 

MISREPRESENTATION.     See  Concealment. 

compensation  given  to  purchasers,  where  37.  .564 

MISTAKE, 

if  a  person  buy  his  own  estate  he  will  be  relieved  253 

a  defence  against  a  specific  performance  138 

in  written  instruments  corrected  by  equity  according  to  pa- 
rol evidence,  where  and  where  not  158 
not  to  the  prejudice  of  a  purchaser  without  notice      170 
of  parties  to   a  conveyance  of  their  rights  will  not  affect  a 

purchaser  ii.  262 

condition  that  mistakes  shall  not  affect  the  sale,  will  only 

cover  unintentional  errors  41,  42 

mutual,  equity  will  not  assist  either  party  205 

agreement  will  be  presumed  to  be  executed  under  a  mis- 
take where  the  purchaser  knew  the  seller  could  not  make 
a  title  305 

of  the  seller  as  to  the  operation  of  his  purchase,  no  bar  to  a 

specific  performance  308 

of  a  party  of  the  legal  construction  of  words,  immaterial         309 
See   Evidence.     Sales   before  a  Master. 
Title.     Will. 
MORTGAGE, 

purchaser  of  an  estate  in  mortgage  makes    his  personal 
estate  the  primary  fund  for  payment  of  it,  where  188 

so  joint  purchasers,  where  ii.  130,  131 

purchaser  must  indemnify  the  vendor  against   the  mortgage 

money  251 

proceedings  in  ejectment  will   not  be  stopped,  where  mort- 
gagee has  agreed  to  purchase  the  estate  252 
equitable  mortgage   will   prevail   over  a  lien  for  purchase 

money,  semble  ii.  75,  76 

deposit  of  title-deeds,  by  a  simple  contract  debtor  of  the 

crown,  binds  the  crown  as  an  equitable  mortgage  ii.  76 

purchaser  of  an  equity  of  redemption  should  give  notice  of 

the  sale  to  the  mortgagee  ii-  220,  221 

purchaser  of  a  mortgage  should   not  buy  without  the  privity 
of  the  mortgagor  ib« 


456  INDEX. 

P.age 

MORTGAGE— coH/m«e(/. 

purchase  will  be  deemed  a  mortgage,  where  255 

power  of  sale  in  a  mortgage  without  the  assent  of  the  mort- 
gagor, is  valid  357,  358 
possession  without  title  will  not  give  a  right  to  redeem  396 
mortgagee  may  purchase  from  the  mortgagor                      ii.  Ill 
See  Auction  Duty. 
NE  EXEAT  REGNO, 

lies  against  a  purchaser  for  purchase-money  unpaid,  where,  249 
NOTICE, 

of  an  act  of  bankruptcy  deprives  a  purchaser  of  the  benefit 
of  the  statute  of  James  ii.  186 

what  is  not  notice  of  an  act  of  bankruptcy  ii,  187 

of  a  judgment  not  duly  docketed  binds  a  purchaser  ib. 

so  of  deeds  not  duly  registered  ii.  221 

but  notice   of  an  unregistered   deed  is  unimportant  at 
law  ii.  223 

purchaser  with  notice  is  bound   in  the  same  manner  as  the 
person  was  of  whom  he  purchased  ii.  268 

unless  his  consent  was  necessary  to  the  validity  of  the 

incumbrance  ii.  269 

and  a  fine  and  non-claim  will  not  improve  his  title,    ii.  272 

unless  it  is  a  mere  legal  title  ii,  273 

to  be  binding  must  be  had,  when  ii.  274 

purchaser  without  notice  is  not  affected  by  notice  in  his 

vendor  ib. 

purchaser  with  notice  will  not  be  affected  if  his  vendor 

bought  without  notice  ib. 

not  material,  as  to  notice,  that  the  purchase  was  made 

under  the  direction  of  the  court  ii.  278,  279 

infants  are  bound  by  ib. 

is  either  actual  or  constructive  ii.  276 

actual  will  not  bind  unless  given  by  a  person  interested 

in  the  property  during  the  treaty  ib. 

what  is  constructive  notice  : 

notice  to  the  counsel,  agent,  &c.  of  the  purchaser  ii.  278 

but  it  must  be  in  the  same  transaction  ii.  279 

a  public  act  of  parliament  ii.  280 

lis  pendens  ii,  281 

but  not  for  the  purpose  of  postponing  a  registered 

deed  ib. 

what  is  not  a  sufficient  lis  pendens  ib. 


I 


INDEX.  457 

Page 

NOTICE— continued. 

registration  of  deeds  where  the  purchaser  is  not  seis- 
ed of  the  legal  estate  before  the  purchase,    qu.  ii.  285 
whatever   is  sufficient  to   put  a  purchaser  upon  in- 
quiry, as  possession   by  a  tenant,   description  in 
a  deed,  &c.  ii.  290 

when  the  possession  is  vacant,  notice  not  implied,  ii.  291 
so  notice  of  a  judgment  held  notice  of  an  equitable 
mortgage  ii.  292 

what  is  not  constructive  notice  : 

a  private  act  of  parliament  ii.  280 

a  public  act  of  a  private  nature,  semble  ib. 

decrees  of  equity  ii.  283 

unless  they  are  decrees  to  account  ii.  285 

an  act  of  bankruptcy  ii.  286 

unless  the  purchaser  claim  the  benefit  of  46 
Geo.  3  ii.  186,  187 

a  commission  of  bankruptcy  ii.  286.  290 

unless  the  purchaser  claim  the  benefit  of  46 
Geo.  3  ii.  186,  187 

docketing  of  judgments  ii.  285 

registration  of  deeds,  where  the  purchaser  is  seised 

of  the  legal  estate  before  the  purchase 
the  vendor  being  out  of  possession 
mere  suspicion  of  fraud 
the  contents  of  court  rolls 
witnessing  of  deeds 
equitable  construction  of  words 
what  is  sufficient  evidence  of  notice 
how  denial  of  notice  should  be  pleaded 

See  Judgments.      Register. 
Conveyance. 
OPINION. 

on  abstract,  to  whom  it  belongs  448 

of  counsel  approving  the  title,  no  waver  of  reasonable  ob- 
jections on  the  part  of  the  person  consulting  him  330 
OPTION, 

to  purchase,  its  effect  167,  188 

PAPISTS, 

who  have  not  taken  the  proper  oaths  can  only  purchase  sub 
modo  "•  lOS 

but  protestants  may  safely  purchase  of  such  papists,  in 
whit  cases  »•  241.  244 

VOL.    Al.  68 


e 

ib. 

ii. 

293 

ii. 

295 

ii. 

296 
ib. 

ii. 

298 
ib. 

ii. 

307 

VOLUN 

TART 

4£8  INDEX. 

Page 

VAVISTS— continued. 

See  Advancement.     Lien. 
PARISHIONERS, 

cannot  purchase  ii.  105 

PARLIAMENT,  ACT  OF.     See  Notice. 
PAROL  AGREEMENT, 

for  a  lease  will  bind  a  purchaser,  where  ii.  269 

See  Evidence.     Statute  of  Frauds. 
PART  PERFORMANCE.     See  Statute  of  Frauds. 
PARTIAL  EXECUTION  OF  A  CONTRACT, 

where  it  will  be  enforced  2S7.  301 

PARTICULARS  OF  SALE.     See  Auctioneer.    Conditions 

OF  Sale.     Statute  of  Frauds. 
PENALTY.     See  Action.     Agreements. 
PERFORMANCE, 

of  an  agreement  to  purchase  and  settle  an  estate  ii.  160 

PERJURY, 

if  a  defendant  deny  a  parol  agreement,  he  may  be  tried  for 

perjury  114 

and  the  plaintiff  is  a  competent  witness  to  prove  the  perjury,    ib> 
PLEADING.     See  Purchase. 
POLICY  OF  ASSURANCE, 

on  a  life  sold  by  auction,  when  after  purchase  completed 
the  purchaser  could  not  recover  damages  for  fraud  255 

POSSESSION, 

the  taking  of,  may  be  considered  as  a  waver  of  objections        10 
delivery  of,  in  general  a  part  performance  of  a  parol  agree- 
ment US 
delivered  to  a  purchaser,  the  effect  of  it                                   249 
may  be  determined  ib. 
where  possession  was  delivered,   but  the   fact  of  purchase 
was  disputed,  an  issue  was  directed                                        131 
See  Purchaser. 
POWER, 

reserved  by  purchaser,   to  appoint  purchase-money,  it   is 

still  assets  172    173 

a  power  to  re-purchase  given   upon   condition,  cannot  be 

enforced  unless  the  condition  has  been  complied  with         256 
where  a  party,  under  a  power  given  by  an  act  of  parliament, 
gives  notice  to  purchase,  he  cannot  withdraw  from  it,  but 
must  take  the  estate  j^,^ 

general  power  of  revocation  in  a  settlement  makes  •  it  void 
against  a  purchaser  ji    179 

although  the  power  is  only  conditional  *  ib. 


INDEX.  459 

Paee 
VO\YER—con(inued. 

unless  the  condition  be  bond  fide  179 

or  although  the  time  of  revocation  has  not  arrived     ii.   180 
the  power  has  been  released  ib. 

See  Mortgage. 
purchaser  will  be  relieve  against  a  defective  execution  of 
a  power  ii.  261 

unless  the  sale  was  not  within  the  compass  of  the,  power  ib. 
POWER  OF  ATTORNEY, 

given  for  valuable  consideration  cannot  be  revoked  451 

PRE-EMPTION, 

right  of  ■  187,  n. 

PRETENDED  TITLE, 

a  sale  by  a  person  entitled  under  an  agreement  before  an 
actual  conveyance  to  him,  is  not  within  the  statute  32 
Hen.  8,  c.  9  560,  561 

PRAEMUNIRE, 

persons  guilty  of  this  ofience  can  purchase,  but  not  hold,  ii.  106 
PRESUMPTION, 

legal  estate  will  be  presumed  to  have  been  conveyed, 
where  338.  360 

PRINTED  NAME, 

a  sufficient  signature  within  the  statute  of  frauds  100 

PROFITS.     See  Rents. 
PROTECTOR, 

of  settlements,  &c.  under  stat.  3  &  4  Will.  4,  c.  74  382 

PUFFER.     See  Bidding. 
PURCHASE, 

how  it  should  be  pleaded  ii-  303 

for   a  valuable  consideration,    is    a   protection,   in    equity, 
against  legal  as  well  as  equitable  estates,  semble,  ii.  308,  309 
PURCHASER, 

who  cannot  be  ii-  106 

cannot  be  relieved  in  respect  of  patent  defects  in  an  estate,   307 
but   otherwise    of  latent    defects   of  which    the    vendor 
was  aware  2.  313 

should  not  trust  to  any  statements  of  the  vendor  respect- 
ing value  3 
but  may  rely  on  a  statement  as  to  rent                                 4 
should  not  employ  the  vendor's  attorney  7 
should  not  take  possession  of  the  estate  where   the  title   is 
doubtful                                                                                          ^^ 
but  may  take  possession  when  contract  is  entered  into     1 1 


460  I  N  D  KX. 

Page 

PURCHASER— conimfiecZ. 

where  a  purchaser  in  possession  of  the  estate  will  be  or- 
dered to  pay  his  purchase-inoney  into  co\irt,  and  where 
not  22i5 

entitled  to  recover  his  deposit  with  interest,  and  the  ex  - 
penses  of  investigating  the  title,  where  239 

does  not  become  tenant  to  the  seller  upon  being  let  into 
possession  249 

such  possession  may  be  determined  ib. 

is  not  bound  to  acquaint  a  vendor  with  any  latent  advan- 
tage in  the  estate  6 

may  misrepresent  the  seller's  chance  of  sale  ib. 

having  notice  of  a  lease  should  see  the  covenants  9.  ii.  291 

what  inquiry  should  be  made,  where  an  equitable  right, 
not  in  possession,  is  purchased  11 

of  a  leasehold  estate,  must  indemnify  the  vendor  against 
the  rent,  &c.  38.  261 

not  where  the  assignees  of  a  bankrupt  are  vendors  38 

entering  into  possession,  even  with  consent  of  the  parties 
in  a  cause,  will  be  compelled  to  pay  the  money  into 
court  62 

of  an  equity  of  redemption  must  indemnify  the  vendor 
against  the  mortgage-money  251 

selhng  before  actual  conveyance  entitled  to  indemnity 
from  sub-purchaser  against  costs  of  proceedings  for  his 
benefit  ib. 

may  sell  or  devise  an  estate  contracted  for  before  the 
conveyance  173 

must  bear  any  loss  happening  to  the  estate  by  fire  or 
otherwise,  before  the  conveyance,  and  is  entitled  to  any 
benefit  accruing  to  it  in  the  interim  ib. 

will  be  compelled  to  take  a  part  of  the  estate,  where      287.  299 

,  of  two-sevenths  of  an  estate  allowed  to  rescind  the  con- 
tract, the  title  to  one  proving  bad  297 

may  insist  upon  a  part  performance,  where  301 

will  be  relieved  in  respect  of  a  defect  in  .the  quality  or 
quantity  of  the  estate,  where  and  where  not  307.  317 

buying  an  interest  which  did  not  exist,  relieved  254 

may  insist  that  the  vendor's  title  shall  be  sifted  218 

length  of  title  a  purchaser  may  require  329 

of  a  policy  of  assurance  not  entitled  to  recover  damages 
for  fraud,  where  255 

under  a  power  given  by  act  of  parliament,  cannot  withdraw, 
after  notice-,  where  256 


INDEX.  461 

•  Paue 

PURCHASER— co7i/tViMed. 

is  entitled  to  what  relief  under  covenants  for  title  ii.  102 

of  an  heir  at  law  or  devisee   not  bound   by  specialty  debts 

of  the  ancestor  or  testator  ii.  31,  n. 

joint-purchasers  will  in  equity  take  as  tenants  in  common, 

where  ii.  127.  130 

where  two    persons   purchase  an  estate,  and  one  pays  the 
money,  he  can  only  file  a  bill  against  the  other  for  a  con- 
tribution ii.  131 
a  purchase  by  two  in  the  name  of  one,  the  trust  may  be 

proved,  how  ii.  132 

parol  agreement  by  two,  and  the  conveyance  taken  in  the 
name  of  one,  is  taken  out  of  the  statute  of  frauds, 
where  >b. 

taking  a  conveyance  in  the  name  of  a  stranger,  the  trust  re- 
sults to  him  ii.  134 
taking  a  conveyance  in  the  name  of  his  child  is  an  advance- 
ment »<•  140 
without  notice  of  an  act  of  bankruptcy  will  not  be  affect- 
ed   by  any   commission    of  bankruptcy    unless  issued, 
when                                                                     "•  184.  187,  188 
buying  an   equity   of  redemption  should  immediately  give 
notice  to  the  mortgagee  ii-  220 
and  should  declare  whether  his  personal  estate  shall  or 
shall  not  as  between  his  representatives  be  the   pri- 
mary fund  for  payment  of  the  mortgage  188 
will  be  relieved  and  protected  in  equity,  in  what  cases,      ii.  258 
paying  off  prior  incumbrances  lets   in  a  subsequent  one   of 
which  he  had  notice                                                              "•  267 
See  Action.     Agent.     Advancement.     Agree- 
ment.     Attested  Copies.       Auctioneer. 
Bidding.      Charitable    Uses.     Chose    in 
Action.       Conveyance.      Consideration. 
Covenants.     Deposit.      Devise.      Fraud. 
Improvements.        Incumbrances.       Judg- 
ments.     Lessee.      Mistake.      Mortgage. 
Ne    Exeat    Regno.       Notice.       Papists. 
Power.       Purchase    Money.      Register. 
Recoveries.        Resulting     Trust.        Re- 
version.       Sales      before      a      Master. 
Terms  of  Years.     Time.     Title.     Trus- 
tees.    Voluntary  Conveyance. 


462  INDEX. 

Page 

PURCHASE  MONEY, 

a  deposit  is  part  payment  of  49 

payment  of,  is  not  a  part  performance  of  a  parol  agreement, 
semble  118.  124 

secured  by  a  purchaser  at  a  day  certain,  must  be  paid,  al- 
though the  seller  break  his  agreement  246,  246 

purchaser  is  a  trustee  of,  for  the  vendor,  from  the  time  of 
the  contract  171 

is  always  assets  of  the  vendor  172 

may  be  required  to  be  paid  into  court,  if  the  purchaser  is 
in  possession  62 

where  a  purchaser  in  possession  of  the  estate  will,  upon 
motion,  be  ordered  to  pay  his  purchase-money  into  court, 
and  where  not  226 

where  purchase-money  is  large,  a  long  day  will  be  al- 
lowed 228 

under  proper  circumstances  the  time  will  be  enlarged  ib. 

may  be  retained  or  recovered  by  a  purchaser  in  respect  of 
incumbrances  or  defects  in  the  title,  where,  and  where 
not  653,  664 

purchaser  has  no  lien  on  it,  after  it  is  appropriated,  even 
in  case  of  fraud  565 

paid  to  a  creditor  having  two  securities,  shall  be  taken  in 
satisfaction  of  the  security  affecting  the  estate  566 

equity  in  favor  of  creditors  will  prevent  payntient  of  pur- 
chase money  to  an  heir  or  devisee  ii.  31,  n. 

and  in  favor  of  simple  contract  creditors  under  47  G.  3, 
and  under  3  &  4  Will.  4,  c.  104  ib. 

purchaser  must  see  to  the  application   of  purchase-money 
of  r^al  estates 
where  the  trust  is  for  payment  of  specified  debts  or  le- 
gacies ii.  32,  33,  34 
the  debts  are  ascertained  by  a  decree  ii.  34 

is  not  bound  to  do  so, 

where  the    first  or  only  trust  is  for  payment  of   debts 

generally  ii.  33 

the  cestuis  que  trust  are  infants  or  unborn  ii.  34 

the  cestuis  que  trust  are  abroad,  semble  ii.  44,  45 

the  trusts  require  time  and  discretion  ii.  36 

is  not  bound  to  ascertain  the  deficiency,  although  the  trust 
be  for  payment  of  such  debts  as  the  personal  estate 

shall  be  insufficient  to  pay  ii.  47 

but  he  is  bound  to  do  so  where  only  a  power  is  given,     ii.  48 
is  equally  bound,  although  there  is  onJy  a  charge  of 


INDEX.  4G3 

PURCHASE  MOlSlEY—contimteiL  ^''^^ 

debts,  &c.  il  37,  38. 

may  be  discharged  from  seeing  to  the  application,  how,  ii.  49 

the  receipts  of  what  trustees  will  be  discharges  ii.  60 

new  trustees  appointed  by  the  court  have  the  same   power 

to  give  receipts  as  the  original  trustees  had  ii.  51 

purchaser  of  leasehold  estates  not  bound  to  see  to  the  appli- 
cation of  the  money  ii.  52 
unless  there  be  fraud,  Sic.  ii.  55 
vendor's  lien  on  the  estate  sold  for  the   purchase-money,  if 

not  paid,  what  ii.  67 

how  payment  of  should  be  pleaded  ii.  305 

See  Agent.     Lien. 
QUALITY  OF  AN  ESTATE, 

false  description  of  307 

QUANTITY  OF  AN  ESTATE, 

false  description  of  318 

RECEIPTS  FOR  PURCHASE  MONEY, 

are  agreements  within  the  statute  of  frauds,  where  87 

by  trustees  are  discharges,  where  ii.  35 

are  conclusive,  where  ii.  62 

RECOVERIES, 

equitable,  good,  although   the  equitable   tenant  to  the  pre- 
cipe has  the  legal  estate  for  life  375 
purchaser  may  after  twenty  years  produce  the  deed,  making 
a  tenant  to  the  proecipe,  as  evidence  that  a  recovery  was 
duly  suffered,  although  no  record  can  be  found  thereof,  ii.  245 
where  a  purchaser  is  entitled  to  a  recovery                       355,  356 
abolished  by  stat.  3  c:  4  Will.  4,  c.  74                        380.  ii.  246 
See  Fines. 
REFERENCE  TO  A  MASTER, 

as  to  the  title  217,  218 

general  practice  in  making  inquiries  under  224 

REGISTER, 

title  deeds  should  be  registered  before  a  purchaser  completes,  549 
what  need  not  be  registered  ib. 

what  cannot  be  registered  ii,  211.  217 

semble,  that    writs  of  execution  on  judgments  intended   to 

affect  leasehold  estates  need  not  be  registered  551 

effect  of  registry  and  non-registry  of  wills  within  the  period 

prescribed  by  the  acts  ii.  204 

of  the  execution,  contents,  &c.  of  the  memorial  ii.  209 

deeds  should  be  registered  immediately  after  their  execu- 
tion 462 


464  I  N  n  E  X. 

Pa;;c 

REGISTER— conthiued. 

deeds,  &c.  are  void  against  a  purchaser  unless  registered  ii.  204 
deed  of  appointment  under  a  power  must  be  registered  ii.  211 
registry  of  an   assignment   which   recites  a  lease   is  not  a 

sufficient  registry  of  the  lease  ib. 

of  the  exceptions  in  the  acts  ii.  217 

registry  of  deeds   is   not  notice   to  a  person  seised  of  the 
legal  estate  ii.  221 

but  it  is  notice   to  a  person   not  seised   of  the   legal 
estate,  semble  ii.  222 

-   purchaser  buying  with  notice  of  a  prior  incumbrance  not 

registered  will  be  bound  by  it  ii.  223 

observations  on  a  general  register  ii.  224 

See  Incumbrances.     Memorial.     Notice. 
RELEASE, 

acceptance  of,  no  admission  of  right  ii.  273 

RENTS, 

purchaser  entitled  to,  from  what  time  61,  62.  ii.  I 

may  be  recovered  by  a  purchaser,  where  252 

REPAIRS.     See  Advancement.     Improvement. 
REPUBLICATION, 

of  a  will,  what  amounts  to  181 

RESULTING  TRUST, 

purchaser  taking  a  conveyance  in  the  name  of  a  stranger, 

a  trust  results  ii.  134,  135 

but  even   a   parol   declaration    will   prevent   a   resulting 
trust  ii.  138 

See  Advancement.     Evidence. 
REVERSION, 

qu.  if  a  bill  will  lie  against  a  purchaser  of  a  reversion  to 
perpetuate  testimony  ii.  26S 

See  Time.     Title. 
REVOCATION,  POWER  OF.     See  Power. 
ROMAN  CATHOLICS.     See  Papists. 
SALES  BEFORE  A  MASTER, 

the  advertisements  are  prepared,  by  whom  55 

conducted,  how  56 

in    a  proper  case    the  court  will  order  a  bidding  to  be 

reserved  55 

if  the  purchaser  resell  at  a  profit  behind  the  back  of  the 
court,  the  second  purchaser  must  pay  the  additional 
price  into  court  for  the  benefit  of  the  estate  67 


I 


INDEX.  466 

SALES  BEFORE  A  MASTER— con/intied.  **'^' 

the  purchaser  must  procure  a  report  of  his  being  the  best 

bidder  gg 

is  entitled  to  a  conveyance,  when  61 

the  conveyance  to  be  drawn,  by  whom  62 

biddings  will  be  opened,  where  65,  66.  69 

practice  with  respect  to  opening  biddings  69 

purchaser  will  be  compelled  to  complete,  when  60 

will  be  discharged,  upon  what  terms  67 

will  not  be  hurt  by  any  irregularity  in  a  decree  ib. 

may  abandon  the  contract,  and  forfeit  his  deposit, 

where  71 

may  be  discharged  from  his  contract,  where  he  has, 
by  mistake,  given  an  unreasonable  price  for  the 
estate  ib, 

purchaser  is  entitled  to  possession,  from  what  time  61 

purchaser  dying  before  the  absolute  confirmation  of   the 

report,  the  court  will  order  a  conveyance  to  his  devisees       64 
joint  purchasers  must  pay  their  money  together  61 

incumbrance  not   appearing  upon  the    report  may  be  paid 

oft',  when  61 

estate  directed  to   be  sold  before  a  master   cannot  be  sold 

otherwise  64 

are  not  within  the  statute  of  frauds  ib. 

although  an  agent's  authority  could  not  be  proved,  un- 
less there  be  fraud  65 
See    Auction.      Fire.     Interest.     Title. 
SELLER.     See  Vendor. 

SIGNATURE.     See  Corporation.     Statute  of  Frauds. 
SLANDER  OF  TITLE.  ii.  277 

SOLICITOR.     See  Attorney. 
SPECIFIC  PERFORMANCE.     See  Agreements. 
STAMPS, 

either  party  may  obtain  the  agreement  from  the  other  to 
stamp  it  241 

STATUTE  OF  FRAUDS, 

no  action  can  be  brought  upon  any  contract  for  sale  of 
lands  unless  in  writing,  and  signed  by  the  person  to  be 
charged  74 

whether  a  licence  is  within  the  act  79 

agreement  by  tenant,  in  consideration  of  improvements  by 
landlord,  to  pay  an  additional  sum  per  annum,  is  not 
within  the    statute  81 

VOL.  II.  69 


466  INDEX. 

Page 

STATUTE  OF  FRAJJDS—eontinued. 

an  agreement  for  an  assignment  is  within  the  act  ib. 

so  is  a  sale  of  a  standing  crop- of  grass  82 

but  timber  growing  upon  the  land  is  not  ib. 

nor  potatoes  in  the  ground  to  be  taken  immediately  83 

want  of  the  signature  to  the  agreement  of  the  parly  seeking 

to  enforce  it,  fraud,  where  85 

agreement  void  as  to  part  is  void  in  toto  84 

the  signature  of  the  party  to  be  charged  is  sufficient  85 

.   a  letter  or  receipt  is  a  sufficient  writing  87 

but  it  must  be  stamped  ib. 

and  prove  the  agreement  set  up  94 

and  it  must  specify  all  the  terms  89 

for  the  most  trifling  omission  will  be  fatal  91 

but  if  it  refers  to  a  writing  which  contains  the 
whole  agueement,  although  not  signed,  that  is 
sufficient  92 

whether  an  entry  by  an  auctioneer  in  his  books  will  do  94 

a  letter  written  to  a  third  person,  containing  directions  to 

execute  the  agreement,  will  do  95 

rent  rolls,  &c.  will   not  be  deemed  an  agreement  although 

signed  96 

the  sending  a  sufficient  agreement  as  instruction  to  prepare 

a  technical  agreement  is  immaterial  98 

what  is  a  sufficient  signature  99.  102 

agent  may  be  authorized  to  contract  by  parol  103 

but  his  clerk  cannot  act  without  a  special  authority  104 

an  auctioneer  is  an  agent  for  both  parties  within   the 

statute  105 

sales  by  auction  of  estates  are  within  the  statute  109 

contra  of  goods,  semble  ib. 

sales  before  a  master  not  within  the  statute  ib. 

or  under  the  authority  of  the  court  ib. 

or  where  the  agreement  is  confessed  by  the  answer,    110, 

111 
unless  the  defendant  plead  the  statute  112 

which  he  cannot  do  by  an  answer  to  an  amended 
bill,  where  he  has  admitted  the  agreement  by 
his  original  answer  114 

sales  not  within  the  statute  where  it  would  protect  fraud,  as 
where  the  agreement  is  express  to  reduce  the  con- 
tract into  writing,  and  it  is  prevented  by  fraud  1 14 
or  an  agreement  partly  performed                                 116 


INDEX.  467 

Pae« 

STATUTE  OF  FRAUDS— continued. 

delivery  of  possession  is  in  general  a  part  per- 
formance 116 
whether  where  two  are  in  treaty  for  an  estate,  and 
one  desists,  qu.                                                         ii«  132 
t                                       but  ancillary  acts  are  not  115 
where  the  payment  of  additional  rent  by  tenant  in 
possession,  or  expending  money  by  him  on  the 
estate,  will  take  an  agreement  for  renewal  out  of 
the  statute  117 
acts  done  to  the  defendant's  own  prejudice  not  part 

performance  125 

nor  payment  of  purchase-money,  semble  1 18 

auction  duty  125 

part  performance  as  to  one  lot  does  not  extend  to 

other  lots  sold  under  distinct  particulars  ib. 

where  the  agreement  is  in  part  performed,  the  court 
will  endeavor  to  ascertain  the  terms  125,  126.  130 

resulting  trusts  are  exempted  out  of  the  statute  ii.  134,  135 

the  statute  only  extends  to  clear  and  simple  trusts  for  the 
benefit  of  the  debtor  544 

See  Advancement.     Agent.     Auction.    Evi- 
dence.    Fines.    Perjury.    Printed  Name. 
Purchaser.       Resulting  Trust.       Sales 
before  a  Master. 
STATUTES  OF  LIMITATIONS, 

their  operation  and  effect  388.  397.  412.  415 

STEWARD.     See  Agent. 
STEWARD  OF  A  MANOR, 

appointed  for  life,  is  not  aft'ected  by  a  sale  of  the  manor         256 
STOCK, 

purchaser  of  life  interest  in,  entitled  to  the  first  dividend 
that  falls  due  62 

STYLE,  NEW.     See  Time. 
SURPRISE.     See  Agreements.     Evidence. 
SURRENDER, 

purchaser  not  compellable  to  take  a  surrender  of  copy- 
holds by  attorney  460,  461 
TENANT  FOR  LIFE, 

may  purchase  the  settled  estates,  although  his  consent  is 
required  to  the  sale,  semble  "•  ^^^ 

See  Power. 


468  INDEX. 

Page 

TENANT    IN    TAIL.      See    AGREEME^T8.     Assignees     of 

Bankrupts. 
TENDER, 

conveyance  must  be  tendered  by  the  purchaser,  where  247 

TERMS  OF  YEARS, 

bequest  of,  revoked  by  the  purchase  of  the  fee  175 

purchaser  may  require  an  assignment  of  what  453 

cease  by  force  of  a  proviso  in  the  deed  creating  them,  where  454 
merge  by  an  union  with  the  fee,  where  460 

title  to  must  be  deduced  at  the  expense  of  the  vendor  465 

the  expense  of  the  assignment  to  attend   must  be  borne  by 

the  vendor  or  purchaser,  where  ib* 

an  assignment  of  n)ay  be  dispensed  with,  where,  and  where 

not  466,4  67 

the  doctrine  of  presuming  a  surrender  of  terms  assigned  to 

attend  the  inheritance  470.  610 

an  attendant  term  cannot  be  taken  in  execution,  semble  492,  n. 
a  man  having  an  actual   assignment  may  prevail   over  one 

having  all  the  deeds  and  a  declaration  of  trust  of  the  term,  467 
a  person  having   the  deeds   and  a  declaration    of  trust  will 

prevail  over  one  having  only  a  declaration  of  trust  ib. 

purchaser  may  protect  himself  by  a  term  assigned  in  trust 

for  him,  against  what  511.  520 

should  be  assigned   by  a  separate   deed  where  they  do  not 

appear  on  the  conveyance  469 

what  recitals  are  necessary  in  an  assignment  of  520,  521 

shall  attend  the  inheritance  without  an  express  declaration, 

where  521 

attendant,  are  not  forfeited  by  felony,  but  follow  an  escheat  525 
are  personal  assets,  where  527,  528 

trustees  should  be  satisfied  of  what,  before  they  sever  the 

term  from  the  inheritance  520,  et  seq. 

gn  assignment  of,  carries  notice   of  incumbrances   on  the 

inheritance,  where  ii.  295 

See  Will. 
TESTIMONY, 

whether  a  bill  lies  to  perpetuate  it  against  a  purchaser,  qu.,  ii.  268 
TIMBER, 

what  is  considered  so  37 

purchaser  will  be  restrained   from   cutting,   before  he   has 

paid  for  the  estate  173 

sold  with  an  option,  personal  estate  after  the  seller's  death  187, 

188 
See  Interest. 


INDEX.  469 

Pag9 

TIME, 

fixed    for  completing  the  contract  is  at   law  of  the  essence 
of  the  contract  ^^^ 

so  in  equity  where  either  party  has  not  shown  himself 

ready  to  perform  the  agreement  425 

and  if  the  vendor  take  no  steps,  although  in  time  urged 

to  do  so,  equity  will  not  relieve  him  426 

but  a  vendor  will  be  relieved  after  the  day  appointed, 

if  he  has  not  been  guilty  of  gross  negligence  427 

or  the  purchaser  has  waved  the  time  426 

is  more  particularly  attended  to  in  sales  of  reversions  429 

delays  occasioned  by  defects  in  the  title  will  not  be  a  bar  to 
the  aid  of  equity  where  the  time  is  not  material  ib. 

so  where  no  time  is  fixed,  if  no  application  has  been 
made  for  the  title,  a  vendor  may  recover  at  law 
although  he  did  not  obtain  a  title  till  after  an  action 
brought  430 

but  if  a  defective  title  be  produced,  a  purchaser  will 
recover  at  law,  although  the  vendor  has  a  title   at 
the  time  of  the  trial  ^^^ 

equity  will  allow  a  vendor  time  to  procure  a  title  where  the 
purchaser  at  the  time  of  the  contract  was  aware  of  the 

u-     *■  436 

objections 

a   dormant  treaty  will  be   enforced  if  the   contract  is   not 

^      A       A  437 

abandoned 

where  by  the   death  or    bankruptcy  of  the  purchaser  the 
purchase-money  cannot  be  paid,  the  vendor  may  rescind 

u  .      .  438 

the  contract 

may  be  made  of  the  essence  of  a  contract,  semble        440.  444 
the  effect  of  delay  where  no  time  is  appointed  445 

must  be  reckoned  according  to  the  new  style  ^         135 

but  in  a  parol  demise  evidence  may  be  admitted   ol   the 
intention 

TITLE, 

where  it  should  be  inspected  before  sale 

where  it  is  doubtful,  a  purchaser  should  not  'ake   possession    10 
purchaser  may  take  the  title  such  as  it  is  209 

will  be  referred  back  to  the  master  af\er  a  confirmation  of 
his  report  in  favor  of  a  title,  if  a  new  fact  eftecting   the 

title  appear 
will  be  referred  to  the  master  before  the  answer,  &c.  where,  222 
rules  as  to  reference  to  the  master  ^2 

if  exceptions  to  a  report  in  favor  of  the   title  are  overruled. 

other  objections  cannot  be  taken 


470  INDEX. 

Pace 

TlThi:— continued. 

contra,  when  the  exceptions  are  allowed  22 1 

purchaser  objecting  to  a  title  must  prove  it  bad  234 

a  vendor  bringing  an  action,  must  show  his  title  to  the  estate  240 
court   of  law  can  enter  into  equitable   objections,   where, 

and  where  not  242 

a  purchaser  of  an  existing  lease  is  not  bound  to  take  a  new 

lease  instead  of  the  old  one  299 

length  of  title  a  purchaser  can  require  329 

semble,  that  a   purchaser  of  a  lessee  can  require  the  pro- 
duction of  the  lessors's  title  331.  334 
a  lessee  cannot  as  plaintifl'  require  a   specific  performance, 

without  showing  a  good  title  to  the  freehold  334,  335 

a  purchaser  of  a  bishop's  lease  cannot  call  for  the  lessor's 

title  337, 338 

a  purchaser  cannot  be  compelled  to  take  a  doubtful  or  an 

equitable  title  340 

but  he  will  be  compelled  to  take  an  equitable  title  where 

the  sale  was  under  a  decree  of  a  court  of  equity         347 
and  cannot  object  to  a  title  on  account  of  a  mere  pro- 
bability 351 
a  purchaser  is  entitled   to  a  fine   from  a  vendor's  wife  in 

order  to  bar  her  dower,  where,  and  where  not  358.  367 

a  purchaser  is  entitled   to   the  same  title  from  assignees  of 

bankrupts  as  from  vendors  sui  juris  367 

a  purchaser  will  be  compelled   to  take  a  title,  although   a 

will  is  not  proved  against  the  heir  at  law  369 

purchaser  being  defendant  may  have   the    title  referred  to 

the  master  218 

where  a  purchaser  takes  a  defective  title   relying  on   the 

vendor's  covenants,  the  agreement  should  be  recited  534 

will  be  held  to  have  accepted  the  title,  where  224 

purchaser  is  entitled  to  what  relief  in  case  the  vendor 
cannot  make  a  title  231 

where  he  has  purchased  a  defective  title  553.  664 

where  he  has  taken  a  defective  conveyance  ii.  264 

person  joining  upon  a  purchase  to  obviate  an  objection  to 
the  title,  will  not  be  bound  unless  the  objection  is  fully 
stated  ii.  262 

but  if  a  person  join  upon  a  general  statement,  he  will 
be  bound  ib. 

slander  of  ii.  277 

sale  of  pretended  title  •    660 


INDEX.  471 

Page 

TlTh^— continued. 

See  Action.      Auction    Duty.      Contract. 
Devisee.  Inclosure.  Mortgage.    Power. 
Statutes  of  Limitation.     Time. 
TITLE-DEEDS, 

if  lost,  the  contents  and  the  due  execution  must  be  shown     338 
may  be  recovered  by  the  purchaser  468 

execution  of,  need  not  be  proved   in  action  for  breach  of 

contract  240 

must  be  produced  in  order  that  the  abstract  may  be  com- 
pared with  them  449 
See  Attested  Copies. 
TREASON, 

persons  who  have  committed,  can  purchase,  but  not  hold,  ii.  106 
TROVER.     See  Abstract. 

TRUST.     See  Resulting  Trust.     Statute  of  Frauds. 
TRUSTEES, 

for  payment  of  debts  will  not  be  restrained  from  selling         250 
their  receipts  are   discharges   for  purchase-money,  where, 

and  where  not  ii.  35 

new  trustees  appointed   by  the  court  have  the  same  power 
to  give  receipts  as  the  original  trustees  had  ii.  51 

every  trustee  who  has  accepted   the  trust,  must  join  in 

the  receipt,  although  he  has  released  ii.  60 

but  not  if  he  renounced  ii.  51 

cannot  buy  the  trust  estate  ii.  109 

unless  they  be  clearly  discharged  from  the  trust  ii.  120 

semble,  that  trustees  for  creditors  cannot  buy  without 
the  consent  of  all  the  creditors  ib. 

trustees  for  persons  not  siii  juris  cannot  buy  with- 
out the  sanction  of  a  court  of  equity  ii.  121 
purchase  by  a  trustee,  without  the  knowledge  of  his 
cestui  que  trusty  may  be  confirmed  under  particular 
circumstances                                                               ii.  115 
purchaser   being  a   relation  of  the  trustee  is  imma- 
terial, unless  fraud  be  proved                                     ii.  116 
cestui    que    trust  has  what  reniedv  against  a  trustee 
who  has  sold  to  himself,  and  who  may  pursue  the 
remedy                                                                        ii.  122 
cestui  que   trust  may  bar  his   equity  to  set  aside  the 
purchase  by  laches                                                      ii.  126 
or  by  confirmation  ib. 
estates  bought   by  a  trustee  with  trust  money  cannot  be 


472  INDEX. 

Pilg9 

TRUSTEES— coH/«i«e(/. 

followed,  unless  the  trust  appear  on  the  deed,  or  the  ap- 
plication of  the  purchase-money  is  clearly  proved  ii.  148 
but  where  a    trustee   is  bound  to  buy   estates,  it  will  be 
presumed  he  acted  in  execution  of  the  trust                ii.   149 
unless  he  considered  himself  entitled  to  the  purchase- 
money  ib. 
may  join  with  tenant  in  tail,  if  of  age,  in  a  recovery          ii.  269 
are  answerable  to  a  purchaser  for  a  false   representation  as 
to  incumbrances  1 1 
See   Heir  at  Law.     Incumbrances.     Interest. 
Purchase  Money.     Terms  of  Years. 
UNREASONABLE  CONSIDERATION.     See  Consideration. 
USES,  DECLARATION  OF.     See  Fines. 
USES.     See  Charitable  Uses. 
USURY, 

what  is  not,  upon  a  contract  ii.   19 

VALUATIONS.     See  Appraisements.     Consideration. 
VALUE, 

false  affirmation  of  3 

covenants  as  to  ii.  102 

VENDOR, 

not  answerable  for  defects  in  the  estate  of  which  he  was 

ignorant  2 

not  bound  to  disclose  patent  defects  ib. 

but  must  not  industriously  conceal  even  a  patent  defect        ib. 
and  is  bound  to  disclose  latent  defects  2.  313.  564 

cannot  be  relieved  against  for  false  affirmation  of  value  3 

but  otherwise  for  false  affirmation  of  rent  4 

or  of  a  valuation  ib. 

must  not  conceal  incumbrances  6 

may  stipulate  to  sell  an  estate  with  such  title   only  as  he 
may  have  368 

but  such  a  stipulation  is  to  be  viewed  with  jealousy         ib. 
of   leasehold  estates  can  require  covenants  of  indemnity 
against  the   rent  and  covenants  in   the  lease  from   the 
purchaser,  where  39 

is  a  trustee  of  the  estate   sold   for  the   purchaser,  from  the 

time  of  the  contract  171 

will  be   restrained  from   conveying  away  the  legal  estate 
after  a  bill  filed  217 

but  on  a  bill  for  a  specific  performance  the  court 
will  not  take  from  a  seller  the  disposition  of  his 
property  SI''' 


INDEX.  473 

Page 

VENDOR— con^wuerf. 

may  in  general  bring  his  action  at  law,  although  his  bill  for 

specific  performance  be  dismissed  248 

will  be  relieved  where  he  has  conveyed  more  lands  than 

were  agreed  for,  where,  and  where  not  324 

must  in  what  case  make  an  allowance  for  the  deterioration 

of  the  estate  124 

where  a  person  having  a  right  to  an  estate,  purchase  it  of 
another,  in  ignorance  of  his  own  title,  the  vendor  must 
refund  the  purcha§e-money,  with  interest  254 

vendor's  lien  on  the  estate  sold  for  the  purchase-money,  if 

not  paid,  what  ii.  57 

vendor,  and  those  claiming  under  him,  must  make  good 
a  defective  conveyance,  in  what  cases  ii.  263 

See    Action.      Agreement.      Annuity.     At- 
tested Copies.     Conveyance.    Purchas£r. 
Time.     Title.     Trustees. 
VOLUNTARY  CONVEYANCE, 

fraudulent  and    voluntary  conveyances  void   against  pur- 
chasers ii.  156 
purchase  by  a    father,  in  the  name  of   his    child,  is  not 

voluntary  ii.  146 

a  conveyance  for  payment  of  debts  is  voluntary,  where, 

and  where  not  ii.  159 

notice  to  a  purchaser  of    a  fraudulent  or  voluntary  con- 
veyance, is  immaterial,  where  he  has  a  conveyance  ib. 
may  become  good  by  matter  ex  post  facto                           ii.  169 
what  is  a  fraudulent  or  voluntary  settlement,  and   what  is 

a  good  consideration  ii.  161.  168 

whether  consideration  of  marriage  extends  to  collaterals,  ii.  161 
parol  evidence  is  admissible  in  support  of  a  deed  apparently 

voluntary  ii-  170 

purchaser  having  notice  of,  cannot  be  advised  to  complete,     ib. 
and    a  specific  performance  would    not  be  enforced 
against    him,  whether   he  bought  with    or  without 
notice  »•  174 

whether  a  specific   performance  would  be  enforced  in 
his  favor  if  he  bought  with  notice,  qu.  ii.  173 

will  be  aided  by  equity,  in  what  cases  ii.  168 

voluntary  settler  will    not    be  restrained  from  selling  the 
estate  >>•  178 

See  Fraudulent  Conveyance. 
WARD.     See  Guardian. 
VOL.  II.  60 


474  INDEX. 

Page 

WAVER, 

by  parol  of  a  written  agreement  145.  148 

of  objections,  what  amounts  to  10.  224 

See  Opinion. 

WILL, 

mistakes  in,  corrected,  where  evident  168,  n. 

unless  the  supplying  of  the  words  would  defeat  the 
testator's  intention  169 

republication  of,  what  amounts  to  ^       181 

purchaser  cannot  require  a  will  to  be  proved  369 

but  he  can  insist  upon  its  production  370 

terms  of  years  attendant  on  the  inheritance  will  not  pass 
by  a  will  not  attes(ed  according  to  the  statute  of  frauds     626 
and  where  the  inheritance  is  intended  to  pass,  but  does 
not,  the  term  shall  not  626 

See  Contract.     Register. 
WITNESS, 

may  look  at  a  paper  if  he  can  afterwards    swear   from 
memory  10 

See  Notice.     Perjury. 


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